Why you probably shouldn’t use a will kit

Will kits are a cheap and, usually, an easy way to make a will.

But they go wrong often. In a case delivered on the 3rd July 2020 (Donnelly 2020 WASC 254), Mrs Donnelly, who was separated from her husband and had no children, used a will kit to prepare a will.Her intention appears to have been to leave everything to her husband as they remained on good terms.

The decision notes: “The will is a ‘will kit’ form with blank spaces for the testator to complete. The deceased completed the will by inserting her full name and address in clause 1 which contains the testator’s details. She filled in the plaintiff’s (her husband) full name and address in clause 2 which appoints the executor of the will and trustee of the estate. There are ‘ticks’ adjacent to each name and address in clause 1 and 2. There is a cross striking through redundant parts and additional striking with letters ‘N/A’ on those parts.

What she failed to do was complete the section dealing with the ‘residue’ of her estate (that is, all of her estate after payment of debts and any specific gifts). She marked that “N/A”. To complete the section properly she should have inserted her husband’s name here. As things stood she had made a will appointing an executor but leaving her estate to nobody. She had subsequently told both her husband and other people that she had a will leaving everything to him. In fact she had made a will that was meaningless.

In the end, the court decided she had meant to leave everything to her husband. But that ‘cheap will’ ended up costing thousands of dollars in legal fees.

Lesson 1.
There are a whole range of circumstances where people use a will kit when they really shouldn’t. Common examples are where they own property as joint tenants and think that they can deal with “my half’ in the will, where they are in a ‘blended family’ situation and wish to ensure that their children are ultimately provided for and where the main asset is a property that they want ‘to keep in the family’.

Lesson 2.
If you are going to use a will kit, follow the instructions in the kit very carefully.

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