The dangers of a DIY will

28 Nov 2017

The end of a loved one’s life is challenging for a variety of reasons. An emotionally fraught time is then further complicated by the need to deal with practical concerns. Increasingly, experts have found that the difficulty of these end of life practicalities is compounded by the proliferation of online ‘DIY wills’.

These wills, which are affordable and can be easily downloaded, offer an alluring cost cutting measure for elderly Australians, many of whom are being faced with a higher cost of living than ever before. But, experts suggest that these documents often fall short of providing a comprehensive end of life plan, and end up costing families in the long run.

Paul Paxton-Hall, Director of Paxton-Hall Lawyers, spoke to researchers about his experience dealing with pro-forma ‘will kits’. Part of the problem, he says, is that the generic nature of these documents means that language can be ambiguous, and often can’t account for more complex family situations.

“These tick-and-flick formulas cannot adequately handle complex financial affairs or situations like self-managed super funds or blended families,” he said, “creating an estate plan is not a matter of filling in the blanks and there is no ‘one size fits all’ approach.”  

 Financial advisor Damien Fahy agrees that these wills can often fail to account for complex situations, but suggests that in more straightforward circumstances these kinds of wills can be a viable alternative to engaging legal advice.

 “Only if your affairs are very straightforward should you consider it,” he says. “A good example is a married couple who plan on leaving everything to each other.”

 But Paxton-Hill suggests that even in more straightforward situations, generic language can be problematic.

“Ill-prepared wills,” he said, “can lead to costly litigation if terms are ambiguous or can be misinterpreted. Your will is one of the most important documents you can make in your lifetime,” he continued, “and while people may save money by creating a will themselves, it could cost their loved ones a lot more in the long run.”

 Solicitor Jennifer McMahon agrees, and says, “drawing up a one-time will can be just as costly as not having one.” She suggests that, even when your situation is straightforward at the time you write your will, life can change quickly and unexpectedly.  

 A recent example of the dangers of online wills was Rhodes v Rhodes in Queensland, where a man established a testamentary discretionary trust in one sentence using a pro forma kit.

“The ambiguous will lead to a dispute among his family that ended up in the Supreme Court of Queensland and a significant delay in the administration of his estate,” recalls Paxton-Hall.

 Overall, experts suggest that, while cheaply downloading a will can be tempting, it is impossible to overestimate the importance of a document that secures your final wishes but also impacts the lives of the family members and loved ones you leave behind.