Are DIY Wills legal? The 4 biggest risks with DIY Wills

A Will is one of the most significant legal documents you’ll sign in your lifetime, so it’s important to get it right - but why? Put simply, it’s an opportunity to meet two imperative goals: to ensure your family is protected and your assets are going to the correct beneficiaries (not the government), and to make things clear and a lot less stressful for your family if you pass away.

If you use a DIY Will kit, it’s possible that neither of these goals will be met. We’ve seen many DIY Wills go horribly wrong, leading to expensive, complex and highly emotional legal disputes.

What are the risks of DIY Wills?

The biggest problem with DIY Will kits is that it’s very easy to get them wrong. Even the simplest mistakes can cause the Will to be contested or considered invalid.

We break down the four most common mistakes that we see.

1. Attempting to give away assets that you don't own

A Will can only dispose of assets that you own at the date of your death, but we often find that some people with a DIY Will try to give away assets that they don’t own.

This could be as simple as not updating your Will when you’ve sold property (or other important times to update or make your Will), but can be more complex if you’re dealing with multiple entities.

For example, we once saw a do-it-yourself Will that included a clause that directed the deceased’s life insurance be used to pay off their house so that their son could receive the house free of debt. Unfortunately, the life insurance policy nominated the Will-maker’s new partner as the beneficiary. When the policy was paid to the partner, they then refused to use it to pay off the mortgage.

Had the Will-maker sought legal advice, we would have advised them on what steps to take to ensure their wishes were fulfilled.

2. Failing to comply with basic legal formalities

A Will is a legal document. There are legal requirements that must be followed when making a Will to ensure that it is valid. 

Simple things such as having only one witness to your signature, or having the witnesses using different coloured pens can raise questions about whether your signature was actually witnessed.

Or, perhaps you have listed a beneficiary who also witnessed your Will. In some states, this is not legal – and means big consequences for your wishes.

Basic errors such as these can either invalidate your Will or create disputes that can take time, money and energy to resolve.

3. Overlooking the fact that circumstances change

Your life changes, and so should your Will. The assets you have when you create your Will at 30 will look very different once you’ve retired at 65. DIY Wills often overlook this.

A watertight Will is drafted to deal with any potential change in circumstance. While not every scenario can be covered, with proper advice the most obvious scenarios, can be dealt with.

For example, if the Will leaves a house to a beneficiary and that house gets sold prior to the Will being administered, that beneficiary misses out on the gift. Proper advice at the time of preparing a Will can avoid these problems.

4. Forgetting to appoint an executor to the Will

The executor of your Will is an extremely important decision that you should make carefully. 

Similar to ensuring you’ve dotted the I’s and crossed the T’s in basic legal formalities, a lawyer-written Will covers off the practical side of Will administration.

Forgetting to appoint an executor of your Will won't invalidate your Will, but it can complicate or slow down the process of sorting out your estate. The failure to appoint an executor can also lead to a dispute as family members jostle to be appointed as Administrator of the estate.

What's the best way to make a Will?

The first thing we say to people who want to write their own Will is: don’t do it.

DIY Wills are often seen as a cheaper option to seeking legal advice, but that’s not necessarily true. A DIY Will might cause more issues down the track, potentially costing your loved ones money or causing disputes.

Would you have your house rewired by a certified electrician? Or your car serviced by a qualified mechanic? Well writing a legal document is the same. It should be articulated by an expert. Have the peace of mind that your Will is legally valid and speak to an experienced Wills & Estates lawyer.