In the decision of Wehbe v Giotopoulos  NSWSC 827 (14 July 2023), Drake J found that the deceased will-maker had capacity at the time of executing her will, and the formal requirements for making a will had been met. The Judge was not satisfied, however, that she had “knowledge or approval” of the will’s contents.
Where a will is executed, and the deceased did have capacity and the formal requirements have been met, the assumption is that the deceased had knowledge and approval of the will’s contents.
In that case, the presumption was rebutted because the will was prepared by one of the beneficiaries named in it and was witnessed by two other beneficiaries. Whilst the formal requirements had been met, the executors could not satisfy the Court that the deceased did have knowledge or approval of her will where it had been prepared by a person who would benefit from it rather than by an independent legal advisor.
This article seeks to highlight some of the major pitfalls of homemade wills.
Inadequate Legal Knowledge
When preparing a will there is a variety of issues to consider which a lawyer can advise you on. When you see a lawyer to prepare a will, in most instances, the lawyer is an independent, impartial third party who is not a beneficiary under the will.
In the aforementioned case, there was no evidence presented to the Court as to the preparation and signing of the will. A lawyer, in comparison, should take file notes when taking instructions, during their engagement, and when signing the will. It is through this process that the Court can satisfy itself that the deceased not only understood the contents of their will but also approved its contents.
Incorrect execution and witnessing requirements
Division 2 of the Wills Act 1997 outlines the requirements of a formal will. Those requirements include but are not limited to:
1. it must be in writing;
2. signed by the testator with the intention to execute the document;
3. the signing must be completed in the presence of at least two adult witnesses; and
4. witnesses must sign the will in the presence of the testator.
A failure to meet the above requirements, and additional obligations, could render a will invalid. If your will is invalid, then your estate may not be distributed as you intended.
Disposition of property under a will
The will-maker can only dispose in their will of property which they own (in their own right) as at the date of their death. Those assets can include but are not limited to personal bank accounts, shareholdings, investments, and real estate. In some instances, superannuation can also form part of a deceased estate, but whether or not this is the case will not necessarily be an outcome the will-maker can control. Careful thought needs to be given as to how to deal with superannuation entitlements and assets held in trusts or companies.
When preparing a homemade will, people can inadvertently create an intestacy by failing to account for assets that they should have.
Intestacy is the condition of the estate of a person who dies without having a valid will meaning the law of intestacy will dictate how a person’s estate is distributed.
When engaging Cornwalls, our lawyers will discuss with you what potential repercussions your decision making could have on your estate, and its beneficiaries, after your death.
Ambiguous language or mistakes
The words or phrases in a will can be open to interpretation and carry multiple meanings. In drafting a homemade will, people can use language which has multiple legal meanings. For example, “I give $10,000 to my children”. Is it $10,000 each or $10,0000 to share, and what happens if one of those children dies before you?
While it may appear that a homemade will is the most convenient and cost-effective option, you will not receive the advice and guidance of a qualified professional who is there to ensure that your estate is distributed in the manner you intended.
If you have any questions about this article please get in touch with the author or a member of our Wills & Estates team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.