A Will is an extremely important document to make sure that your family will be looked after, following your death. However, with the rise of technology and the ease it brings us, more and more people are turning to websites offering online Wills or even handwriting their own Will. Law firms always tell you the importance of seeing your lawyer to make sure your Will is valid. But is this a money making exercise for lawyers or are there real risks with making your own Will?
A handwritten or online Will is not necessarily invalid but if the legal formalities for making a Will are not strictly followed, your Will may be completely invalid and useless. At the very least, you should ask your lawyer to review any homemade Will to make sure that you have complied with the formalities.
Some common problems we see in homemade Wills include:
Will not witnessed correctly
If the witness hasn’t completed their details correctly, then they may need to provide the Court with affidavits confirming they did comply with the witnessing requirements when applying for probate. This can delay the application for probate, especially if the witnesses can’t be found.
In extreme cases, if your Will isn’t witnessed properly it could be declared invalid by the Court and all of your wishes disregarded.
Significant care needs to be taken when choosing your witnesses – if you wish to benefit them in your Will, then they should not be a witness as this will invalidate their gift.
A simple thing that can cause various difficulties when applying for probate. People often use a paperclip to hold their Will together. However, when applying for probate if the Court sees a paperclip on your Will, or a dent from a former paperclip, they will need evidence that there were no additional pages or documents attached to the Will in front of them. This can be difficult evidence to obtain.
Not dating the Will is another common problem and further documents will be needed to provided to the Court in order for the Court to accept the Will as the last Will and testament made.
Incorrect names/spelling errors
If you don’t refer to individuals by their full name or if there are any spelling mistakes when listing property or other gifts in your Will, this will cause complications and it can mean evidence is needed by way of affidavit to show who is intended to benefit and what.
When making your own Will, people sometimes start by explaining what gifts they would like to make and often forget to name an Executor in the Will. The Executor is the person who has responsibility for administering your estate and making sure your wishes are met and if you don’t name anyone in this role the Court will need to appoint someone into this role – and it may not be someone you would have chosen.
Finally, a common problem with homemade Wills is that people often focus on their key assets but forget to include wording to deal with any other assets they own. If a Will fails to include a general clause gifting any other assets, and assets are forgotten, the deceased will be intestate in respect of any unnamed assets – this means that the law will decide who receives them. The same happens if you give an item in your Will to an individual who dies before you and you don’t include wording to say who should receive it if they have died.
Disclaimer – this article prepared by Bethan Boscher, a Solicitor of Morrison Kent, Auckland, is intended to provide a general overview of the area of law only. It is not exhaustive, does not purport to cover all details and should therefore not be relied upon exclusively or be construed as personal advice.