Whether from a Newsagent, on-line or from another source the quality of these Kits varies greatly. Even if you are confident that you have filled it out correctly and followed the instructions for signing and witnessing, it is still worthwhile to have a qualified lawyer look over the document for you.
I am often asked to “check” a Will that someone has prepared themselves and unfortunately I frequently find errors. If a mistake is picked up at this stage a new Will can be prepared. If the error is not found until after you have died, at best obtaining Probate of the Will might be delayed and more costly but at worst, the Will could be invalid.
You might think that as a lawyer I am just trying to give the makers of Will Kits a bad rap. This is not the case. The independent consumer advocate, Choice, conducted a review of five widely available Will Kits and their findings are available on their website at
One of the criticisms made by Choice, which I have noticed myself, is the absence of good clear advice in relation to taxation and superannuation. In today’s financial climate superannuation is comprising a greater proportion of our overall wealth and a Will that does not address how super is to be dealt with will clearly be deficient. Superannuation in the hands of some beneficiaries will be tax-free, others will need to pay tax. There might be a need to “stream” assets to a particular beneficiary to achieve the best result. None of these arrangements are covered in the Will Kits I have seen.
Another common problem with Will Kits is the lack of clear instructions in relation to how they should be signed. I reviewed one recently that did not explain the process for witnessing the Will and did not advise that each page of the Will should be signed. Luckily, in this case, the Executor was able to identify the witnesses and they are both still alive and able to recall the circumstances in which the Will was signed. They will be able to provide an Affidavit of Due Execution to accompany the application for Probate.
Blended families also throw up complications that a Will Kit cannot adequately cover. Depending on your particular circumstances special provisions may need to be included to deal with specific assets. It is often the case that a life interest or a right to reside in a property might need to be created to secure accommodation for a second spouse with the children from the first relationship to ultimately receive the property. The Will Kits I have seen make no provision of these types of arrangements.
Many of the Will Kits recommend that legal advice be obtained if the circumstance warrant. The problem with this suggestion is, as the former US Secretary of Defence, Donald Rumsfeld famously said:
“There are known knowns. These are the things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”
It is the unknown unknowns that catch people out. The things they did not realise they had to consider. If you are unaware that the distribution of your assets might have tax consequences you won’t know that you need this advice.
It is often that case that when a client comes in to see me they say they are after a “simple” Will. In their minds it is all very straight forward. Once we start talking the complexities of jointly held assets, companies, trusts and superannuation become evident.
So at the end of the day, although a Will Kit might be adequate for the simplest of Estates, relying on them in other circumstances can be fraught with danger.
Article by: Ann Eagle