The COVID-19 pandemic boosted the usage of DIY Will Kits with a 265% increase in sales of online Will kits during March 2020.

More people are clearly seeking ways to organise their estate planning and, with greater access to the internet than ever, online Will Kits seem to be an efficient and simple way to do so.

However, while Will Kits can be easily purchased from the post office or local news agency for less than $50, there are several issues that should be considered before convenience.

Are Will Kits a good idea?

Let’s look at 5 common problems with DIY Will Kits.

1. The Will Kit is not complete

There are many crucial sections of a Will that may be left blank. The simplest questions can be overlooked, creating problems with the validity of the Will.

2. The Will is signed incorrectly

The law in each State of Australia has strict requirements for proving that the signature of the Will is genuine and valid. If these rules are not followed, the Court has a number of processes for proving a signature and this can cost a lot of time and money.

If the Will is not signed, questions may arise about whether the person intended for the document to be their will.
Even writing the correct name is a common issue. The Executor of the Will may have issues proving that Eliza Smith is the same person as Elizabeth Jane Smith. This can result in delays in administering the assets of the estate.

3. The Will gives assets that are not owned by the Will-maker, or does not give away assets

Assets can be held in various trusts and funds, and it is common for users of Will-Kits to give away assets that are not held in their own name or not give away assets that they do own. Additionally, there are specific requirements for assets in a family trust and in superannuation. It is crucial to correctly identify estate and non-estate assets when preparing a Will.

4. The Will is not witnessed by anyone, or has only one witness

Legislation requires that the signature must be acknowledged by the testator (person making the Will) in the presence of two or more witnesses present at the same time. Section 8 of the Succession Act 2006 (NSW) sets out when the court may dispense with formal requirements for the execution, alteration, or revocation of a Will, including where it has not been properly witnessed.
Where a Will has been witnessed by only one person, the DIY Will will be classified as an “informal Will” which can create issues for lodging a Grant of Probate.

5. The Will is in a damaged condition

If the Will is creased, stapled, ripped, has paperclip marks or uses a different pen halfway through, or if there are amendments to the Will which are not identified by the Will-maker and the witnesses, the Executor will need to explain the damage to the Probate Registry. This can incur huge costs.

There are many other problems that arise with the use of DIY Will Kits and the processes of validating the Will through the Probate Registry. There can be enormous delays and costs when the rules are not followed, and the people dealing with the Will after the Will-maker’s death can be burdened with costly and complex problems. If the Court decides that a Will is not valid, it can revert to an earlier will or deem that there is no Will and therefore, the assets may be distributed in a way that was not intended. These problems can be easily avoided by preparing a Will through a Solicitor.

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Chattels are commonly defined as “moveable property”. In terms of a deceased estate ‘chattels’ will include the personal property of the deceased such as furniture, jewellery and personal items and other property not including real property.

It is important for the value of a deceased’s chattels to be known, as it will affect the beneficiaries of the deceased’s Estate in a number of ways.

Capital Gains Tax

Capital Gains Tax is a tax on the difference between the value of the asset when the deceased bought it and the value of the asset when you received it under the Will.

It is important to know the value of chattels of the deceased so that the beneficiaries are able to ascertain whether there is any Capital Gains Tax payable, or whether the chattels are exempt from Capital Gains Tax. For example, most personal use chattels such as furniture are exempt from Capital Gains Tax, as long as their value was less than the statutory amount when they were purchased by the deceased. However, some collectible items such as jewelry and artwork may be liable to Capital Gains Tax.

Intestate Estates

If the deceased died without a valid Will, then the deceased’s Estate will be distributed in accordance with the laws of intestacy set out in the Succession Act. The value of the chattels in the Estate will need to be known, in order for the distribution to statutory beneficiaries. Depending on the intended beneficiaries the statutory rules leave assets of a certain value to the deceased person’s spouse (in certain circumstances)which requires the value of the assets of the deceased to be known.

Family Provision Claims

If the Estate is subject to a family provision claim, then it is also important that the value of the chattels are known so that the Court can ascertain the value of the Estate when making orders to vary the distribution under the Will.

If you are a beneficiary under a Will and have been gifted with a Chattel of the deceased then you should talk to an expert Wills and Estates lawyer on the effect of this inheritance. In particular why it is important to know the value of the chattels received by you and any other beneficiaries of the Estate.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost-effective service, which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.

These duties include:

• Collecting the assets of the deceased.
• Organising funeral arrangements.
• Paying the debts owed by the deceased.
• Distributing the estate in accordance with the will.

The Executor is also required to obtain Probate and has a duty of care towards the beneficiaries.

If Executors do not carry out the duties properly, they can be removed by a court order. The court can revoke the Grant of Probate on sufficient grounds being established.

Recently the Supreme Court of NSW ordered an Executor to be removed due to a conflict of interest. The Executor tried to transfer shares owned by the deceased to himself instead of the named beneficiaries under the will.

The Executor knew that the deceased held the shares and the shares were to be given to the beneficiaries. However, the Executor did not record the shares in the assets and liabilities of the estate.

The beneficiaries brought a court case, seeking to have the Executor removed. At law the Executor has important duties to fulfil and failure to perform these duties, can lead to the removal of the Executor and revoking the Grant of Probate.

In this case the Executor did not locate and disclose all the assets of the estate in a timely manner. He made unauthorised transactions to pay himself substantial amounts of commission from the estate’s funds. He did not administer the estate in a timely and proper manner.

It is generally accepted that the reasonable time for an Executor to complete their obligations to the estate is, one year from the date the Grant of Probate was obtained. In this case, the Grant of Probate was obtained on the 29 March 2011, and the administration of the estate remained incomplete at the date of the hearing, five years from date of the Grant of Probate.

The Executor had also failed to keep adequate accounts of the estate and could not give an explanation as to why the accounts had been poorly managed. The Court found he did not recognise the significance of his role as an Executor.

The court was satisfied that these breaches of his duties were serious and justified the Grant of Probate being revoked and removing him the Executor.

It is essential for an Executor to properly carry out their duties entrusted to them by the Probate Court and to act honestly and fairly. The Executor has fiduciary duties and can become personally liable to the beneficiaries and creditors of the estate even if that was the result of his carelessness. Failure to properly administer the estate and placing the interests of the beneficiaries at jeopardy will likely result in the court removing the Executor, revoking the Grant of Probate and issuing a new Grant to another person.

Have you checked your life insurance policies? If you have nominated a beneficiary for your life insurance policy then your life insurance policy will not be included in your Estate.

What you should do? Anyone with a life insurance policy needs to be aware of exactly how the monies under the policy will be dealt with after they are gone.

The main trap for people with a life insurance policy is the nomination of a beneficiary and the effect that this nomination will have on their Estate. If a beneficiary is nominated in your life insurance policy, then the insurer will pay the proceeds of the policy directly to the beneficiary. In essence, the monies payable under the life insurance policy will not be included in your Estate and will not be passed onto beneficiaries named in your Will.

If there is no beneficiary named under your life insurance policy then the monies payable under the policy will be included in your Estate and distributed in accordance with your Will.

There is no right or wrong way in which to direct the monies payable under your life insurance policy, as long as you are aware of the effect that naming a beneficiary in your life insurance policy will have. However, you do need to speak to an expert Wills and Estates lawyer, to ensure that the monies payable under your life insurance policy go to the right person. If your insurance policy is through your superannuation fund, then you need to seek advice on how to make a binding nomination to ensure that the monies go to the beneficiary you have nominated.

And remember, things change. If you have nominated beneficiaries under a life insurance policy, make sure you review these nominations. Divorce, relationship breakdown or death of a nominated beneficiary, might require changes to be made to your beneficiary under your life insurance policy to reflect your changed circumstances.

When you are planning your Estate the best thing you can do is seek expert legal advice from a Wills and Estates lawyer. This advice will encompass all facets of your assets and liabilities and what you wish each beneficiary to receive. This will necessarily cover your life insurance policies whether they are through an independent insurer, or through your superannuation fund. Rather than risk making an oversight obtain expert assistance to plan your Estate and draft your Will to accurately reflect your intentions.

Please contact us to book an appointment.