Should you risk a DIY Will?
A man made his own Will.[i] He used a Will form from a DIY Will kit. In his Will he:
- appointed an executor and even named a back up;
- made specific gifts of money to different persons, and made sure he gave away the remainder of his estate;
- filled out the blank sections in his own handwriting;
- expressed the wish that his organs be donated and his body cremated; and then
- signed it and dated it.
But this was not enough. He failed to have it witnessed in accordance with the law.
That same day, the man made a video and audio recording reciting the contents of his Will and explaining that he hoped his Will would be effective despite not having it witnessed.
The next day the man sadly committed suicide. Found amongst his possessions were his homemade Will and his iPhone with the recording.
As his Will was not prepared in accordance with the formalities set out in section 8 of the Wills Act 1936 (SA), it could not be admitted to probate in the ordinary way. Instead, the executor had to make an application to the Court that the document be admitted to probate as his Will despite it not being prepared in accordance with law.
The Court could only admit his Will to probate if they were satisfied that:
- the document expressed testamentary intentions of the man (ie. expressed intentions relating to distribution of his estate upon death); and
- the man intended the document to be his Will.
To commence the application, the executor had to prepare a Summons and Affidavit setting out the orders sought and explaining why and how the Court should be satisfied of the above two requirements. The executor then had to obtain consent of all persons who could be affected by the Will sought to be proved. The executor would very likely have instructed a lawyer to prepare these complex documents for her.
These documents were then filed in the Probate Registry of the Supreme Court. The Probate Registrar then sent the matter to a Judge to determine. The Judge then arranged a court hearing. The executor instructed counsel to represent her in Court.
The end result was that the Court said the document could be admitted to Probate as his Will. The Court determined that the document expressed his testamentary intentions and was intended to be his Will.
Although the man’s wishes would be followed, it was not without difficulty. The process would likely have cost thousands of dollars and took almost a year from the date of the man’s death before it was heard in Court. It was still a long way to go before any of the man’s estate could be distributed to the people he’d named in his Will.
Proving a document that is not made in accordance with law as a Will may be successful, but will likely be a stressful, lengthy and expensive process.
Don’t take the risk. Always seek legal advice when preparing a Will.
Turner Freeman Wills & Estate Lawyers can provide you professional and practical advice regarding Will disputes, Powers of Attornery, Estate planning, administration and Litigation.
Our SA offices are located in Adelaide and Whyalla.
[i] The case discussed in this article is In the Estate of Rohan Alexander Russell (Deceased)  SASC 56