The Risk of a Home-Made Will

Drafting a will might not be high on your list of priorities, but it’s a crucial step towards ensuring peace of mind for yourself and security for your loved ones after you’re gone. Without a will, the fate of your property and your children’s future may fall into the hands of government decisions. As a solution, many turn to do-it-yourself (DIY) will kits for convenience.While DIY will kits may appear similar to those crafted by lawyers, they come with notable distinctions. Below, is a tale that explains the risks you should be aware of. 

The Risk of a Home-Made Will

Our story begins with a pensioner by the name of William Kenneth Green who lived on Norfolk Island.  Kenneth had a relatively small estate.  It consisted of his home on Norfolk Island and a term deposit.

Presumably William considered the cost of a lawyer to prepare what he considered to be a simple Will, was too high.  He decided to write the Will himself on a single piece of paper.  William then signed the Will in the presence of two witnesses.

Sounds good so far right!

Unfortunately for William, only one of the witnesses signed his Will and the legislation applicable in Norfolk Island is quite clear.  For a Will to be valid, it must be witnessed and signed by two witnesses.

Compared to legislation in the various Commonwealth States and Territories, there is no provision in the legislation of Norfolk Island to relax the rigidity of this rule.  As a result, despite William’s clear and best intentions, his Will was held by the Supreme Court of Norfolk Island to be invalid.  His estate was therefore to pass according to the rules of intestacy.

In a cruel twist of fate for the daughter of William, who was named in his Will as his sole beneficiary, she was held to be an ineligible beneficiary under the intestacy rules.  This was due to the fact she had been legally adopted by her mother’s new partner and was therefore no longer considered to be a child of William for legal purposes.

So, what happened to William’s estate?  It all went to his surviving next of kin.  His sister.

The above story is an important lesson for those who are considering writing their own Wills.  Beware!  Whilst you may think you have a simple estate, it is still important to obtain legal advice to ensure the validity of your Will, otherwise you risk unwittingly creating an issue that is not discovered until after your death.  And by then, it may be too late to fix.

At DSL Law, we have staff who are experienced in estate planning and the preparation of simple or complex Wills.  Contact us today for a quote.

• The story is based on the recent case of Deputy Curator of Deceased Estates, in the matter of Green [2024] NFSC 1 (25 January 2024).

Author: Kim Kyle, Senior Solicitor