The Curse of Homemade Wills

In today’s economy, people aim to save and avoid unnecessary costs and expenses. Some consider that one such unnecessary expense is instructing a solicitor to draft your Will. This suggestion may stem from the belief held by some that we are all able to write our own Wills (particularly if our affairs are simple) without any legal assistance or we can simply purchase a cheap ‘will-kit’ from the post office or local newsagency, in which all that has to be done is to fill in the blank spaces and to sign it.

There are, however, numerous risks associated with this course of action. These risks were clearly identified in the recent decision of the Supreme Court of Western Australia in Rogers v Rogers Young [2016] WASC 208. In this case, the Testatrix (‘Will-maker’) utilised a ‘will kit’, which is a type of homemade Will that can be purchased from most post offices and newsagencies. In her Will, the Will-maker gave the residue of her Estate to her daughter (her only child), and stated that in the event that her daughter were to predecease her, then the Will-maker’s nieces and nephews were to inherit her Estate. However, the Will also stipulated that, if at the time of her death any beneficiary of the Will was under the age of 18 years, then that beneficiary’s share would be held on trust for that beneficiary’s support, welfare and education until they reach the age of 25 years. As it turned out, at the time of the Will-maker’s death, her daughter who was to inherit her Estate was 16 years old (thereby being a minor). This meant that, on the face of the Will, a trust would need be administered for the daughter’s benefit until she reaches 25 years of age. However, as was mentioned in this case, it has been settled law since the middle of the 19th century that if the beneficiary of a trust is over the age of 18 years and has an absolute vested and indefeasible interest in that trust, then he or she can request that the trust be terminated and the trust property be transferred to him or her.

Given the legal uncertainty which arose from the Will, the Executor of the Will made an application to the Supreme Court, seeking directions from the Court as to the proper interpretation of the Will pursuant to s 45 of the Administration Act 1903(WA) and s 92 of the Trustees Act 1962 (WA).

Ultimately, the Court held that the daughter acquired an absolute vested and indefeasible interest in the trust property upon reaching the age of 18 years and not 25 years, despite the apparent intentions of the mother that her daughter should not receive the residuary estate until she has reached the age of 25 years.

In this decision, the Court made the following damning observation about homemade wills:

“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

This case, therefore, highlights the problems that arise if people decide to draft their own Wills, namely:

• Uncertainty as to the meaning of certain words or clauses in the Will, which leads to a dispute as to its proper interpretation;
• The time and expense of having to go to Court in order for the Court to determine the correct and proper interpretation of the Will;
• The risk that the Court might declare that the clause in question (or possibly the entire Will) is void or inoperable, giving rise to a partial or full intestacy, which means that that part of the Estate which was dealt with under the inoperable clause will now have to be determined under the intestacy rules in the Administration Act 1903 (WA); and
• The risk that the testamentary wishes of the Will-maker may not be given effect to.

It is therefore self evident that the benefits of avoiding the ‘curse’ by having an experienced estate planning lawyer draft your Will and effectively arrange your estate planning objectives greatly outweighs the potential consequences of not doing so.