The pitfalls of a homemade Will

From
Elizabeth Wang

Elizabeth Wang

While homemade Wills and Do It Yourself Will kits may appear to be an ‘easier’, ‘timely’ and ‘cheaper’ alternative than instructing a lawyer to draft your Will the recent Victorian Supreme Court case of Re Hely; Application by Arbuthnot & Donaghue [2018] is a reminder of some of the pitfalls which may arise when a homemade Will has been prepared.

In this case, the testator’s final Will was prepared by the testator’s non-lawyer daughter. However, parts of the testator’s Will had been based on a draft Will that was prepared by lawyers that the testator had engaged two years prior to the testator passing away. Unsurprisingly, a number of deficiencies were found in the drafting of the testator’s Will and court proceedings ensued.

The first deficiency arose due to a failure to nominate a beneficiary for the seven testamentary trusts created by the Will. This was an oversight by the testator’s daughter as she failed to include a clause which set out the draft beneficiaries of each of the seven testamentary trusts from the draft Will prepared by the lawyers engaged by the testator. The failure of the Will to specify the beneficiaries of the seven testamentary trusts had the result that the Will did not carry out the testator’s intention. The court had to rectify the testator’s Will to insert the beneficiaries.

The second deficiency was in relation to the wording used in the Will to give cash gifts ‘up to a maximum of’ a specified amount. The Court found that there was no ambiguity from the use of the phrase ‘up to’ and construed the gift clauses as giving the designated amount.

An application to rectify the testator’s Will was also made to avoid capital gains tax liability as there was evidence to show that the testator intended that his seven children be treated equally in respect of capital gains tax liability.

There were also issues in relation to gifts to grandchildren as two vesting dates were given, 18 and 21 years. The Court rectified the Will by replacing the vesting date of 21 years with 18 years.

The Court also construed residuary clauses in the testator’s Will so that the executor could distribute to charities chosen at their discretion after consultation with the trustees.

This case should act as a caution to anyone who may be thinking of using a Do It Yourself Will kit or preparing a homemade Will. For important estate planning documents and Wills one should engage or instruct a lawyer so you have peace of mind in knowing that the will is valid and that it has been drafted to reflect your intentions.

By Elizabeth Wang, Solicitor

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