Introduction

Creating a will is a big deal if you want your stuff to end up in the right hands when you’re gone. But handling this isn’t a walk in the park, and even tiny slip-ups can spark legal headaches, arguments among the folks who stand to gain, or mess things up altogether. In New South Wales, getting a hold of do-it-yourself will kits sounds handy, but they carry risks and common mistakes that can really mess with your plans. This might upset your entire game plan, leading to a lot of unnecessary drama for your family.

This guide provides essential information on the most common mistakes people make when drafting their own wills in NSW. It outlines the risks of using DIY will kits, highlights key legal requirements, and offers practical advice on how to avoid costly errors. By understanding these pitfalls, you can ensure your will is legally sound and accurately reflects your intentions, providing peace of mind for both you and your beneficiaries.

Risks of DIY Wills

Inadequate Personalisation and Limited Options

DIY will kits often use generic templates that do not cater to unique personal circumstances. This can lead to several significant oversights in your estate planning.

For example, you might attempt to gift assets you do not fully own, such as property held jointly with someone else, which a DIY will may not properly address. These templates also lack the flexibility to include alternative provisions, potentially resulting in unintended consequences for your beneficiaries.

Failure to Reflect Changing Circumstances

DIY wills are typically static documents that fail to account for important life changes, including:

• Marriage
• Divorce
• Acquisition of new assets

This static nature can result in outdated documents that no longer reflect your current wishes. For instance, if you draft a will while single and later get married, your DIY will may not account for your spouse’s rights under NSW inheritance laws.

Inability to Adequately Attest to Testamentary Capacity

DIY will kits cannot independently verify your mental capacity to make a will. This limitation can lead to challenges if your capacity is later questioned in legal proceedings.

A lawyer, on the other hand, can provide independent evidence of your mental capacity, which becomes crucial if the will is contested by family members or other interested parties.

Improper Execution and Witnessing Errors

Common execution mistakes that can render your will invalid include:

• Signing without the required number of witnesses
• Using different inks for signatures
• Signing at separate times rather than together

For example, if you sign the will in one ink and your witnesses sign in a different ink, it can raise questions about the validity of the will and potentially invalidate the entire document.

Absence of Appointed Executor and Contingency Plans

DIY will kits frequently overlook the need to appoint an executor or provide alternate appointments. This oversight can lead to disputes or delays in estate administration if your primary choice is unwilling or unavailable to serve.

Without a clear executor designation, the court may appoint someone who does not align with your wishes, potentially complicating the administration of your estate.

Increased Legal and Financial Risks

Errors inherent in DIY wills can lead to several serious consequences:

• Prolonged probate processes
• Costly litigation between beneficiaries
• Unintended tax liabilities

These issues can significantly reduce the value of your estate and place undue stress on your beneficiaries. For example, improper asset distribution or ambiguous language can result in legal battles among beneficiaries, depleting the estate’s resources through legal fees.

Common Mistakes

Drafting your own will (a DIY will) increases the risk of making critical mistakes. These 10 common errors, in particular, can invalidate your will or cause significant complications for your beneficiaries.

1. Failing to Meet Legal Formalities

One of the most common mistakes when drafting a will is failing to meet the legal formalities required in NSW. For a will to be valid, it must be in writing, signed by the testator, and witnessed by two independent individuals who are not beneficiaries.

Common errors include:

• Improper Witnessing: The will must be signed in the presence of two witnesses who are present at the same time. Witnesses should not be beneficiaries or their spouses to avoid disqualification.

2. Lack of Testamentary Capacity

Testamentary capacity is crucial for a will to be valid. The testator must have a clear understanding of their assets, the natural beneficiaries of their estate, and the nature of the document they are creating.

If the testator’s mental capacity is in doubt, the will may be challenged in court, potentially leading to it being declared invalid.

3. Using Ambiguous Language

Using vague or unclear language in a will can lead to misunderstandings and disputes among beneficiaries. Phrases like “I leave my assets to be divided equally among my children” can be problematic if the testator has stepchildren or estranged children.

Specific details about asset distribution, percentages, and named beneficiaries should be included to avoid misinterpretation.

4. Omitting Specific Asset Distribution Instructions

Failing to provide detailed instructions about how assets should be distributed can lead to confusion and disputes. It is essential to specify which assets go to which beneficiaries and to address the distribution of the residuary estate (the remaining assets after specific gifts have been distributed).

For example, if the testator wishes to leave their residuary estate to multiple beneficiaries, the will should specify the portion each beneficiary is to receive.

5. Failing to Update the Will Regularly

A will should be updated regularly to reflect changes in personal circumstances, such as:

• Marriage or divorce
• Birth of a child
• Acquisition of new assets

Failing to update the will can result in outdated provisions that no longer reflect the testator’s wishes, potentially leading to legal challenges.

6. Overlooking Digital Assets

Digital assets, such as online accounts, digital currencies, and social media profiles, are often overlooked in estate planning.

Failing to include instructions for the management or distribution of these assets can lead to loss or unauthorised access. It is important to appoint a digital executor to handle these assets after the testator’s death.

7. Failing to Name Alternate Beneficiaries or Executors

Not naming alternate beneficiaries or executors can lead to complications if the primary individuals are unable or unwilling to serve.

It is essential to include contingency plans, such as appointing alternate beneficiaries or executors, to ensure the smooth administration of the estate.

8. Not Appointing a Guardian for Minor Children or Dependents

If the testator has minor children or dependents, failing to appoint a guardian can leave them without legal protection or care.

The will should clearly state who the testator wishes to care for their children or dependents if they are unable to do so themselves.

9. Ignoring Potential Tax Implications

Failing to consider the tax implications of the estate can lead to unexpected financial burdens for beneficiaries. Proper tax planning can help minimise:

• Estate taxes
• Capital gains taxes
• Other financial liabilities

Consulting with a tax advisor or estate planning specialist can help ensure that the estate is distributed in a tax-efficient manner.

10. Not Seeking Professional Legal Advice

One of the biggest mistakes is not seeking professional legal advice when drafting a will. While DIY will kits may seem cost-effective, they often lack the legal precision and customisation needed to address specific circumstances or complex estates.

A solicitor can ensure that the will is legally compliant and accurately reflects the testator’s wishes, reducing the risk of disputes or legal challenges. To avoid these pitfalls and ensure your estate plan is comprehensive and secure, contact PBL legal. Our expert estate planning lawyers possess the necessary expertise to guide you through the process and tailor a will that truly protects your interests and your beneficiaries.

Conclusion

Drafting a will requires careful consideration to ensure your wishes are respected. DIY wills risk improper execution, ambiguous language, and outdated information, which can lead to legal disputes and unintended outcomes for your loved ones.

Seeking professional legal advice ensures your will is legally compliant and addresses complex matters like tax implications, digital assets, and contingency plans.

If you need assistance with drafting or updating your will, book a consultation with PBL Legal today. Our experienced team will provide the guidance you need to secure your legacy and give you peace of mind.

Frequently Asked Questions