Everyone has probably seen or heard of the DIY will kits you can pick up at newsagents or the post office. Some of you may even have used one to make your own homemade will. You followed the instructions and a will is a will, right? Not quite. A recent matter we had highlighted the dangers of DIY when it comes to making a will.
Case Study
Mrs Oliver* was in her late eighties when she passed away. She was widowed but left behind four children, three daughters and a son, and a will she had made on a DIY will kit. She had filled it in herself, in her handwriting, and asked two of her elderly neighbours at her retirement village to act as witnesses.
She had a solicitor she knew so she nominated his law firm as her executor.
Mrs Oliver had left all her estate to her son and one of her daughters and it was well known that she had done this because the other two daughters were very comfortable financially. Fortunately, she had discussed this with the children and they were happy with their Mother’s wishes.
Either at that time or at some later time, Mrs Oliver decided she probably should leave a little something to the other two daughters and handwrote at the end of the will leaving them each some jewellery.
Fast forward 15 years and Mrs Oliver passed away. The children located the homemade will and asked us to administer the estate.
Problem No. 1 – You cannot appoint a law firm as an executor.
We contacted the law firm listed as executor and the principal of the firm had since retired. His son was now the principal of the firm and was not interested in being the executor. We requested that he sign a renunciation of executorship, and while he agreed in the first instance, he then started failing to answer and return calls and after significant chasing, it became clear he would not cooperate.
Problem No. 2 – You cannot amend a will after you execute it by just writing on it, even if you initial the changes.
The court naturally picked up that the will had been written in two different pens. Now it was not immediately clear whether Mrs Oliver had written the will in one sitting with two different pens or whether the second pen was amendments she had made at a later time. The court wanted to hear from the witnesses.
Problem No. 3 – You are best to pick witnesses that have a reasonable chance of outliving you.
We managed to locate the witnesses after much searching. One had died and the other was living in a nursing home with dementia and no memory of Mrs Oliver or her will.
Problem No. 4 – If you pass away and were suffering from an illness which affects your mind, proof is needed that you were in your right mind when you made the will.
To top it off, the death certificate listed dementia as a cause of death. Therefore, we had to prove to the court that at the time the will was made, and arguably at the time it was amended, Mrs Oliver knew exactly what she was doing and was not yet suffering the effects of dementia.
Solutions
One of the daughters stepped in and agreed to act as administrator. We applied for Letters of Administration for her but had to provide additional evidence to the court about what had happened with the named executor.
We also had to provide an affidavit from the solicitor who had located the original witnesses as to why they could not give evidence.
We then had to have each of the children provide an affidavit confirming the will was in their Mother’s handwriting, it did express her intentions as she had discussed with them around that time, at the time she appeared to be of sound mind and that her dementia did not commence until later. To add complexity, one of the daughters now lived overseas so having her affidavit witnessed was particularly difficult.
Fortunately, as Mrs Oliver had died such a long time after making the will, the court did not require an affidavit from her doctor at the time confirming she was of sound mind. It would have likely been difficult if not impossible to locate the doctor, particularly if they were older and had since retired or died.
Needless to say, the few hundred dollars Mrs Oliver saved in doing her own will ended up costing thousands of dollars at the other end.
The happy ending for this one was that Letters of Administration were finally granted and the instructions in the will were able to be carried out to the letter. Most times the ending is not so happy.
The moral of the story: Don’t engage in the false economy of a homemade will. The heartache and expenses you leave behind for those you love is not worth it and in the worst case, you will leave them in a worse position than if you hadn’t even made a will at all.
* Names have been changed to protect client confidentiality
By Kathryn Millist-Spendlove
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