A member asked about 9 years ago

Will kit

Are do-it-yourself will kits legally enforceable?

Christie Gardiner
Lecturer of Law at Australian National University

Yes, Will-kits are lawful.However, the enforceability of a Will-kit (or any Will) depends on whether or not it has been prepared in accordance with various formal witnessing requirements for Wills. A Will only comes into effect on your death, at which point it's enforceability will be assessed.

What are the formal requirements of valid Wills?

The requirements for witnessing Wills in SA are set out under the Wills Act 1936 (SA)and these are broadly similar to all of the other Australian jurisdictions and include the following:

  • the Will-maker must have testamentarycapacity to make a Will, including that they are over 18 years of age and of sound mind, memory and understanding; and
  • the Will-maker must have theintentionthat the document they are signing constitute their Will - accordingly there must be a document (defined broadly) that expresses these intentions; and
  • the Will must be signed by the Will-maker (or at the Will-maker's direction if he or she is unable to witnesses the document); and
  • the Will-maker's signature must be witnessed by at least two witnesses present at the same time (the witnesses are not required to be present at the same time, though practically they should be and this is best practice).

Are Will-kits worth the risk?

No. The Supreme Court does have jurisdiction to look beyond a failure to meet most of the above requirements in a range of circumstances - excluding those relating to capacity (as a statutory 'Court ordered' Will should be obtained for this purpose not a Will-kit). However seeking the courts 'rectification' or 'construction' of a Will that fails to meet these requirements or conceals the Will-maker's intentions will come at great expense to your beneficiaries.

Will-kits are an alluring economic option for many, however even the most straight forward of family and property arrangements require a level of qualified advice in order to achieve your intended outcome.I have heard many refer to will-kits as creating a 'false economy', quite simply on the basis that they are initially very cheap - however, if they are not correctly prepared, they will produce significant costs and confusion for your estate and your beneficiaries, perhaps requiring the intervention of the Court to put right.

Do they achieve the best outcome?

Rarely. In terms of the outcome that these documents achieve for your beneficiaries, they do little more than appoint someone to manage your affairs and name the beneficiaries of your property. Will-kits offer no tax effectiveness or asset protection, as compared with tailored Wills that are shaped to meet your families needs, both now and long into the future. You are also likely to own a range of non-estate assets (such as superannuation, life insurance or family trusts) and these assets require the implementation of separate mechanisms altogether.

What other options are available?

A specialist estate planner should always be contacted. Particularly as most lawyers will now offer complementary estate planning consultations with no obligation to engage the firms services. Many lawyers are also more than happy to have a preliminary chat over the phone. Will drafting is increasingly a specialist area of law. Unfortunately I have seen far too many Wills that have been prepared by qualified solicitors, but that fall far short of the mark.

I recommend that you view your estate plan as an investment for your family and act accordingly.

Answered almost 9 years ago   Legal disclaimer

Brennan Ong Val Antoff Sandy  Rizkallah
3 lawyers agree with this answer and 1 member found this useful

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