Risks From Home Made Wills 09 Dec 2011

One Hamilton High Court case highlighted the difficulties and pitfalls of drafting and executing your own Will when the Court heard of a person who created and signed two Wills on the same day.

Parry Field Lawyers provide legal advice on making a will and general estate planning.

Home Made Wills
Mr Madsen had obtained a home made will kit and used it to record his testamentary intentions.  The problem arose after he died, in March 2001, when it was discovered that he had executed two documents both of which purported to be his last Will and Testament.

The two documents were dated "8th December 2000" and "8th 2000" respectively.  Both documents were signed by the same witnesses, and the evidence presented to the Court established that the Wills were signed on the same day, but no one could remember which one had been signed first.  There was no question that Mr Madsen had testamentary capacity to sign both documents.

The difficulty arose when the trustees tried to obtain probate for the Wills.  It required a formal application to the High Court of New Zealand and required all people affected by the Wills, and who might have some claim to the estate, being served with the proceedings and being required to instruct solicitors to represent them.

Fortunately, it was accepted by all concerned that both documents should be granted probate as the Wills were essentially of the same effect, with one Will being slightly more detailed version of the other.  In those circumstances, where there was essentially no dispute over the Wills, the Court was able to make orders that suited all parties.

If there had have been a dispute, or if the contents of the Wills were significantly different to each other the case would not have been so straight forward.

In any event the matter was not resolved until it went to Court in 2003, some 18 months after Mr Madsen's death.

The Court awarded costs of $3,337.50 to each of the two groups of beneficiaries, both of whom were represented by solicitors.  Those costs, as well as those of the solicitors for the estate, and the disbursements incurred in the proceedings, were all paid from the estate.  The costs awarded were undoubtedly used up in legal fees.

Potential Problems
A home made will kit may be cheaper to prepare than a will prepared by your lawyer, but this case clearly demonstrates that mistakes may cost a lot more than the savings made.  In addition there are dangers in preparing your own Will. If it is incorrectly signed or witnessed, it will not be valid, and in preparing your own Will you run the risk that it will not adequately deal with the distribution of your assets, and the beneficiaries will need to resort to costly legal proceedings.

A Will takes effect on death when we are not around to correct mistakes, clarify confusion or prevent unscrupulous family members helping themselves.  The law relating to Wills and their administration is very specific, and strictly adhered to, and the Court is very conservative when dealing with estate matters as its only guidance is the written wishes of the person who has now died.

If those wishes are ambiguous, or there is a problem with the execution of the will, the beneficiaries will suffer due to costs and delays as a result.

Our Advice
Often clients say "I just want to keep the Will simple". Simple Wills can be dangerous because they do not provide for all circumstances. For example on remarriage, or entering into another relationship, your assets may go to the new partner instead of your children. The answer MAY be to create a trust in your Will but you need to consider other factors such as how the house is owned because if it is owned in joint names, it automatically goes to your spouse regardless of the Will.

Most lawyers charge from $50.00 to $250.00 to prepare Wills which gives you the benefit of expertise and also advice on wills, property, Enduring Powers of Attorney and Relationship property where necessary. Each Will is made to your individual requirements. While a Trustee Company may prepare Wills, they usually charge a fixed percentage to administer your estate. For a $100,000 estate this may be up to 3% i.e. $3,000. Lawyer's fees for administration are based on time and are usually significantly less for a similar size estate.

"Why take the risk and attempt to prepare your own Will and jeopardise the security of your family when you can obtain professional advise from a lawyer for a relatively small cost."

The Parry Field pointers on Wills :

• Estates can be administered without a Will, but it is more complicated, slower and more expensive.
• A Will makes it easier and simpler for the survivors to know what to do with your estate and it provides you with your chance to have some input.
• Clarity is important. A Will need not be long or complicated, but it must be CLEAR.
• Costs for Wills are relatively minor. (Most being from $50 to $250 ). Why take the risk with a "DIY" - Do It Yourself, Kits?.
• Every Will is personal. If you have a specific idea or wish that you would like to put into a Will write it down and we can tell you whether it is feasible or not.
• The shortest recorded Will was "All to Mother" reputably by Charles Dickens. He actually meant his wife who he referred to as "Mother". The Will was upheld but not recommended

Should you need any assistance with this, or with any other Will related matters, please contact Ken Lord (348-8480) at Parry Field Lawyers.