From time to time, we are told that clients have, or are considering, creating a ‘Will Kit’ Will. Whilst ‘Will Kit’ Wills may be appealing as they are inexpensive for the Testator (the person making the Will), there is a very real risk that a much greater expense will be incurred when administering the Estate later on.
The Wills Act 1936 (SA) sets out detailed requirements for a Will to be valid. There are a number of considerations that may be overlooked when preparing a ‘Will Kit’ Will yourself, opposed to engaging a solicitor, that can have consequences for the validity of your Will. Some common examples are as follows:
- There are strict requirements for witnessing a Will, and non-compliance with these requirements can invalidate the Will entirely. By having your Will witnessed by a solicitor, the law presumes that witnessing requirements have been executed correctly. Further, adhering to these requirements and modified requirements during COVID-19 is particularly important and solicitors are constantly reviewing their practices to ensure proper compliance as the COVID-19 situation evolves.
- Failing to ensure that adequate provision has been made, or at least considered, for all relevant persons increases the chance that the Estate will be contested, which may result in litigation.
- Overlooking parts of the Testator’s estate results in the Estate being ‘partially intestate’. When this arises, the Executors and/or Beneficiaries have to administer that part of the Estate according to what the legislation says, rather than the person’s wishes.
- The words used in a Will can assume a special, technical legal meaning that differs from the ordinary understanding of the word. Solicitors are trained to undertake careful drafting of legal documents to properly encompass your wishes in a legally binding way.
- The Testator’s ‘Testamentary Capacity’ (mental capacity to make a Will) could be disputed. When a solicitor prepares a Will, they are required to make comprehensive file notes about their discussions with the Testator. A solicitor’s file can become an important piece of evidence in upholding the validity of the Will if testamentary capacity is challenged.
If you are considering making or updating your Will, we can meet with you to discuss your personal circumstances and provide thorough advice to create a Will that is tailored to you and valid at law. We also offer complimentary storage of your Will at our offices.
Hume Taylor & Co were awarded a Recommended Leading Wills & Estates Litigation Law Firm in SA in Doyle’s Guide 2019.