Will and Estate – Is Self-preparation Will and will kits Will enough?

1. Can I create a DIY Will or will kits Will, and is it valid?

Yes, you can create your own will or purchase one from the post office and news agency, and those Will kits are professionally drafted. The validity of your Will depends on the following:

• the contents of the Will.
• whether the Will meets the formal requirements.
• your mental capacity.
• intention to make a Will and more.

However, please be aware there may be hidden dangers of going it alone without legal advice.

2. What is the implication and risks of having DIY will and will kits Will?

The purpose of having a Will in place is to distribute your assets according to your wishes and to avoid any dispute or litigation after you pass away. A poorly prepared Will may defeat both the purpose. For example, the DIY will make not have specific provisions for a specific gift such as some particular house or your jewellery, the wording may be generic and not specific throughout the Will, Witnesses and signing requirements may not be compliant etc.

3. Recent Case Law

The recent case law, Marlow v Croft [2020] NSWSC 251 has demonstrated the complications of using the Will Kit.

Mr Marlow had a will kit Will with the following term.

“5. Residuary/Residue of my Estate

I give the residue of my estate to MY WIFE XXX AND TO STAY AT [STREET ADDRESS ] TILL SHE DIES THE HOUSE OR BELONGINGS NOT [NOT INTERLINED] TO BE SOLD UNTIL THE DEATH OF MY WIFE ALSO ALL MONEY IN BANK GOES TO MY WIFE [signed]

But if he/she/they predecease me then I give the residue of my estate to MY CHILDREN, DIVIDED EQUAL SHARE, IN THE EVENT ANY OF MY STATED CHILDREN PREDECEASE ME THEIR SHARE IS TO BE DIVIDED BETWEEN THEIR CHILDREN EQUAL SHARE.”

After his death, the Will was contested by his children, considering whether the testator intends to dispose the property to his wife as a right of residence, a life interest in the house or an absolute gift.

The Court held that the deceased’s will was to make an absolute gift as it is logically inconsistent to give the property to his wife and then prevent her from selling the property.

This was the Court’s point of view, and no one knows if this was the deceased will?