DIY Wills Queensland: Can I Make My Own Will?

This is the seventh in our series of articles on the uncertainties of death and busting some common Estate Planning myths.

The Uncertainties of Death Series

“I can do my Will myself… Right?”

Well… yes. But what is the “true cost” of trying to save a few dollars now?

You can make your own Will. However, getting the wording, signing or witnessing wrong can create significant problems later.

If your “do it yourself” Will is not properly drafted, clear in its terms and correctly witnessed, the true cost of the Will may substantially exceed the cost of seeking legal advice now in the preparation of your estate planning.

Queensland law sets out requirements for how a Will must be executed. A Will must generally be in writing and signed by the testator. The testator’s signature must also be made or acknowledged in the presence of two or more witnesses who must attest and sign the Will in the testator’s presence. You can read the current requirements in the Queensland Succession Act 1981.

What can go wrong with a DIY Will?

A homemade Will can create problems if the document does not properly record your wishes or does not meet the relevant legal requirements.

Often it is necessary to make an Application to the Court to seek Orders to rectify defects in “home made” Wills.

In some circumstances, the Court may rectify a Will where it does not carry out the testator’s intentions because of a clerical error or because it does not give effect to the testator’s instructions.

Rectification is a specific legal remedy. It does not apply to every problem that can arise with a homemade Will.

Your home made Will might not be legally recognised and the cost to prove the document is your Will may be significant.

In some cases, a document that does not meet all the formal requirements may still be considered by the Court. However, relying on a Court application after your death can create additional uncertainty, delay and expense for your family.

Can a homemade Will be legally recognised?

A DIY Will can be legally recognised if it satisfies the relevant legal requirements. However, mistakes in drafting, signing or witnessing can create problems.

The wording of a Will also needs to clearly express your intentions. Ambiguous or incomplete wording can lead to disputes about what you intended.

These issues can result in additional legal costs for your estate and your family.

Will a DIY Will cover all of my assets?

Not necessarily.

Also, it might not “catch” all of the assets that you intend, such as jointly held property, life insurance and superannuation.

This is important because not every asset is necessarily dealt with by your Will in the same way.

Jointly held property

The way property is owned can affect what happens to it when you die.

For example, jointly held property may be dealt with differently from property that you own solely. Your ownership arrangements should therefore form part of your broader estate planning.

Superannuation

Superannuation does not always pass according to the terms of your Will.

Your superannuation arrangements and any beneficiary nominations should therefore be considered as part of your estate plan.

Wakerley Legal’s Wills and Estate Planning service specifically considers who receives superannuation benefits as part of the estate planning process.

Life insurance

Life insurance also needs separate consideration.

Depending on the policy and ownership arrangements, the proceeds may not simply pass according to the terms of your Will.

This is another reason why preparing a Will should form part of a broader estate plan.

What is the true cost of a DIY Will?

The initial cost of a DIY Will may appear attractive.

However, the cost of a Will is not simply the price you pay to prepare the document.

If the Will is unclear, incorrectly executed or fails to deal with your assets as intended, your estate may face additional legal work after your death.

That can mean additional costs for the people left to administer your estate.

It can also create uncertainty at an already difficult time.

Why professional estate planning can matter

A Will is only one part of an effective estate plan.

A properly considered estate plan can take into account your assets, family circumstances and the people you want to benefit.

It can also identify issues that may not be obvious when completing a standard Will template or Will kit.

This can be particularly important if you:

own property with another person;
have superannuation or life insurance;
have children from a previous relationship;
have a blended family;
own a business;
have significant or complex assets; or
have particular wishes about how your estate should be distributed.

Wakerley Legal explains that estate planning involves more than preparing a Will. It can also involve considering superannuation, life insurance, jointly held property, trusts and who may challenge your Will. Learn more about Wills and Estate Planning.

Is a Will kit cheaper in the long run?

Not necessarily.

A Will kit or homemade Will may cost less to prepare. However, the financial consequences can be much greater if the document contains errors or fails to achieve your intentions.

The question is therefore not simply whether you can make your own Will.

The more important question is whether your Will will properly achieve your intentions and form part of an effective estate plan.

What happens if my homemade Will has a problem?

The consequences depend on the nature of the problem.

In some circumstances, a Court application may be necessary to address an issue with the Will. This can create additional legal costs and delay for your estate.

Wakerley Legal can also assist with estate matters involving documents that may not meet all the formal requirements of a valid Will, including applications to the Court concerning informal Wills. Learn more about Deceased Estates and Estate Administration.

Frequently Asked Questions

Can I legally write my own Will in Queensland?

Yes. You can prepare your own Will in Queensland. However, the Will must satisfy the relevant legal requirements, including requirements concerning execution and witnessing. The wording must also properly reflect your intentions.

Is a DIY Will valid in Queensland?

A DIY Will can be valid if it satisfies the relevant legal requirements. However, mistakes in signing, witnessing or drafting can create problems. In some circumstances, Court involvement may be required.

Do I need a solicitor to make a Will in Queensland?

You are not required in every case to use a solicitor to prepare a Will. However, legal advice can help ensure your Will properly reflects your wishes and works with the rest of your estate plan.

Does my Will cover my superannuation?

Not necessarily. Superannuation may be dealt with separately from the assets passing under your Will. Your superannuation arrangements and beneficiary nominations should therefore be considered as part of your estate planning.

Does my Will cover jointly owned property?

Not necessarily. The way jointly owned property is held can affect what happens to your interest when you die. Your ownership arrangements should therefore be considered when preparing your estate plan.

What happens if my homemade Will has a mistake?

The consequences depend on the nature of the mistake. In some circumstances, a Court application may be necessary to address an issue with the Will. This can create additional legal costs and delay for your estate.

The real cost of getting it wrong

By not taking on the responsibility to have your Will and estate plan in place, you can cause unnecessary emotional hurt and significant cost for friends and family members.

A DIY Will may seem like an easy way to save money now. However, a poorly drafted or incorrectly executed Will can create uncertainty and expense for your loved ones later.

Taking the time to prepare your Will and broader estate plan properly can help ensure your wishes are clearly recorded and your estate is dealt with as intended.

If you are considering making or updating your Will, Wills and estate planning advice can help you understand the options available to you.

If you are already dealing with a disputed or potentially defective Will, Wakerley Legal’s Will Disputes team can provide advice about the issues that may arise.

The Uncertainties of Death Part 7: Can I Make My Own Will?