Creating a homemade Will may seem like a convenient and cheaper option for your estate planning. However, there are real risks that your homemade Will may fail to meet the strict requirements of the Probate office and be invalid.
In order for a Will to be validly executed, it must be:
- In writing;
- Signed by the person making the Will, in the presence of two witnesses;
- Signed by those two witnesses; and
- Signed with the intention of executing a Will.
If all of those requirements are not met, the Will may be invalid. Often DIY Wills are not executed properly because the witnesses haven’t signed, or the Will was only signed in front of one witness and not both. Additionally, if a Will is amended after it is signed and that amendment is not properly initialled and witnessed, it may also lead to a Will being invalid.
While the Supreme Court of Victoria can admit an informal will that is not validly signed if the Court is satisfied that the document was intended to be a Will, this can be a difficult and very costly court application. The Court must have regard to evidence relating to how the Will was executed and the intention of the person making the Will (“the testator”) – that they intended the document was meant to be their last Will and not just a draft document.
Homemade Wills can also be problematic where there are questions about the will maker’s capacity at the time of creating the document. The Will maker must have testamentary capacity when executing their Will. An experienced wills and estates lawyer can identify if there are any potential issues around capacity when taking instructions and obtain evidence from the will maker’s doctor if needed to address this. With DIY Wills, often it can be more difficult to address questions about the will maker’s capacity when they made their ‘at home’ Will.
If a Will is not properly executed, it can create difficulties and additional time and expense for the Executor when they are trying to obtain probate or administer the estate. A DIY will may be cheap but the consequences of not having your will properly prepared can be costly. To avoid this, it is best to have your Will prepared by an experienced wills and estates lawyer, who can ensure the Will meets all of the requirements.
Wightons Lawyers can assist with all aspects of estate and succession planning, including ensuring your Will is executed accordance with the requirements under the Wills Act 1997. We invite you to contact our office on 5221 8777 to discuss how we can assist and find out about our fixed fee pricing for Wills and Powers of Attorney.
This article is general information only and is not legal advice or a substitution for such advice. Always seek professional advice suited to your own circumstances.
Our Wills & Estates team are available across our four offices.
