Wills for Losers

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You’re right (the customer always is) – why would you want to spend good money on doing a document that only benefits other people, not you – such as a Will.

I mean, look what you’ve already given in hand outs to your family and now, on your celestial transfer, you’re expected to give them what’s left and, to top it all off, to pay good money to a lawyer to make sure it happens – really?!

Best not to do one, then?

Just think – you can spend all that money you saved on other pleasure pursuits travelling the world with gay abandon as you slowly and inexorably creep towards that mythical nirvana – dying with nothing and a smile on your face!

What would ‘they’ say in your eulogy – here lies a recalcitrant who lived for themselves and damned the rest. And what would ‘they’ put on the tombstone, the public and permanent record of your parsimony or prudence? A pang of conscience might now prick your potentially wayward thoughts.

How about a compromise? – do it, but do it cheaply. Even better, do it in such a way that you never have to grace the halls of those piranhas called lawyers. Just picture the ambience – in the comfort of your computer cave you can access an online Will service and DIY it.

The Virtual Experience

There are two types of online Wills – those that come from a lawyer and those that don’t. They are cheap, some are really cheap:

1. The Non Lawyer Online Kit; and
2. The Lawyer Online Kit.

1. The Non Lawyer Online Kit

These days you can quickly and neatly add a Will precedent to your online ‘Cart’ and ‘Checkout’. Then you fill in the blanks, smile and sign – simple?

When you buy a Will Kit, however, you’re not buying legal advice. You are buying a questionnaire and a template of ‘how to’ instructions. Do you trust yourself to both know the law on completing a Will, to understand the instructions and the implications of what you insert and to do it properly? A client recently showed us the fruits of his online experience – in his online Will he had bequeathed some of his estate to his brother who had also been a witness to the Will – a no no.

2. The Lawyer Online Kit

Some lawyers offer online do-it-yourself Will drafting without the need for a conversation. This would have to be a better way wouldn’t it?

Same old same old issues as the other option above – at first sight, you are not getting what you would traditionally expect from a lawyer – advice, if not options and the implications of those options. Instead, you get some mechanised instructions on issues to consider. Is this really any more sophisticated than filling out a Will Kit?

Beware as well – those lawyers may have you sign a document acknowledging that you have not obtained legal advice. In short, they may not accept responsibility for any train wreck unwittingly created by your DIY Will.

What could go wrong?

Hmmm – how much time have you got?

Let’s be frank – despite courts finding that words on a bedroom wall or left on a mobile phone can constitute a Will, the law is still very pernickety about Wills – both to ensure they are clear as to what they mean and in requiring them to be completed and signed properly. Any failure in either respect will see your Will (including your bedroom wall) end up in court with, and there they are again, lawyers happily draining your estate with legal costs.

Even worse, the Court might find that the Will you so carefully crafted and completed is actually invalid and not worth the paper (or wall) it’s written on. Now that’s a problem. The legacy of benefits you so lovingly intended to leave suddenly becomes a gift of implosion, dispute and cost for your family.

A Sleeper Issue

One of the developing areas of litigation over Wills stems from the concern that a person did not understand what a Will was or what they meant to do in the Will – it’s known as a lack of testamentary capacity.

If you don’t have the necessary capacity to make a Will, then any Will you do make is invalid. Even more, if there is someone standing behind you as you input that information on your online Will exercising some form of undue influence over you, that Will could also be invalid.

As yet, to my knowledge, there is no computer programme in an online Will kit that can assess your capacity or what is actually going, or not going on, in your mind.

Be master of your life and death

You have the choice to do something and to do it well. If, like the Arnott’s Biscuits mantra, there is no substitute for quality in your life, you just might be prepared to talk with us about the subtleties and complexities of Will making and such issues as:

• How to balance interests in blended families;
• Providing for beneficiaries who struggle with addictions or have a disability;
• How a child’s marriage breakdown can affect the distribution of your Estate;
• Shielding beneficiaries from some tax liability;
• Explaining the loans and gifts you made in life;
• Understanding what happens to your family trust when you die;
• Directing superannuation death benefit nominations and life insurance payouts;
• Avoiding inadvertently short-changing a beneficiary;
• Reducing the likelihood of a challenge to your Will – what works, what doesn’t.

Alternatively, you may be happy with cheap, average or even useless. If so, go online now and try your luck. As lawyers, we may just end up being beneficiaries of your estate.

Brian Herd
Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.