This is one of my favourite questions to answer. Mostly because I am self-interested and love the chance to prove to someone that I actually have value. The answer is no, you don’t.
The longer answer is no, you don’t need a lawyer to make your will but your loved ones will really wish you had.
Two, three, maybe even four decades ago there was little reason for the average Australian to spend money on a will. Their estate was a small bit of superannuation, the family home wasn’t worth that much, and that Rembrandt in the attic was probably a forgery. So why on earth would you spend more than $15 -$28 on a will when that’s roughly what a will kit from the post office or newsagent costs you?
Fast forward to 2015 and two things have happened. First, even the smallest family home seems to be worth fighting over and makes an estate suddenly very valuable. Second, one of my favourite barristers buys his second holiday home on the back of a run of post office will kit cases. I’m not saying these events are necessarily related, but it is uncanny timing.
Will kits took the pro forma nature of where solicitors start when drafting a will and left it in the willmaker’s hands to sort the rest of it out. What happened was a lot of wills that were incomplete, referred to gifts that no longer existed when the willmaker passed, didn’t convert the residue into easily understood shares, and spent a lot of space and ink talking about hobby stamp collections and favourite vases.
These same postal will kits also meant that solicitors had to try and compete on pricing and ended up offering “free wills with every conveyance” like these documents are a set of steak knives. Some solicitors to this day still struggle to believe their clients will pay more than $100-$200 for a document that literally defines the legacy of most of their clients and on average deals with around $1million. I do not know of any profession where the item they must give away cheaply or for free gets the same level of attention as everything else.
The modern equivalent is all of the digital and online wills that are effectively forms collected on websites and priced suspiciously close to an hour’s worth of a paralegal’s time. These are normally not customisable and there are serious issues as to the security and privacy of such services. The purpose of these are of course to up-sell the expensive testamentary trust will for any client who might require it.
This is all very understandable, as is the motivation to make your own will cheaply, however all too many people will make a will assuming their estate doesn’t have enough value to warrant something more specific. That is the problem with estates, they tend to grow quite a bit between your first will and the date of your death.
The problem with wills that aren’t professionally drafted by someone that focuses on that area of law, is that your beneficiaries end up spending an exorbitant amount of money fixing the mistakes. Did “divide my estate in equal shares between my children” include the adult son of your new partner that you’ve never really had anything to do with? What about the tax implications if one of your children moved overseas? Did you really mean to grant a life estate to your cat or appoint the nice in-home care assistant your executor?
Wills can be simple, but to make them simple and effective takes skill and practice in an area of law that was treated by many as the “would you like fries with that” department until very recently. Don’t make the kind of mistake that costs your beneficiaries tens to hundreds of thousands to fix, just to save money right now.
If you need assistance in relation to estate planning matters, please contact Jenkins Legal & Advisory on 02 4929 2000 or email office@jenkinslegal.com.au
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice