A conversation worth having
At least 70% of Australians wish to die in their own home, but less than 20% do. Death in an institution can often mean intrusive interventions such as intensive care continuing when there's little point.
Dying to Know Day is an initiative that aims to bust the taboo of talking about death and dying, and encourages Australians to prepare their end-of-life wishes. The official day is 8 August, but community events are held throughout August, from a webinar about palliative care to a 'Funky Funeral Music Radio Show'.
Making end-of-life plans puts you back in control and helps with having your dignity and privacy respected. Important steps are talking to your loved ones, making an advanced care plan and writing a will.
Five will kits put to the test
Don't have a will? You're not alone – nearly half of Australians don't have a will, and even if they do, chances are it may not be up to date. If you've gotten married or divorced, had a baby or one of your beneficiaries has died, part or all of your will may no longer be valid.
It's not the nicest thing to think about, but it's good to be prepared. Going to a lawyer can be expensive, but not preparing for the worst may cause trouble for your family at an already emotional time.
So can a cheap DIY will kit do the job? We've put five will kits – priced from $4.50 to $30 – to the test and found huge differences between them. While some can help prepare a simple will, all of them have flaws.
What we found
Will kits can be an excellent research tool. Depending on your situation and skills, they can help you to write your will, but they can't adequately handle complex situations such as blended families or self-managed super funds. So we recommend you get some expert advice as well. Making sure your loved ones are provided for is far too important to leave to chance, and the consequences could be disastrous if you get it wrong.
Will kits reviewed
All will kits assume you read the material in full and have at least some understanding of the issues involved in writing a will.
Will Form – Collins
From: Bought at a NSW newsagent
Description: Will form with basic instructions
- Very affordable
- Suggests obtaining expert advice if in doubt
- Very basic instructions – could confuse rather than clarify
- Issues relating to children, taxation, superannuation and executors aren't adequately covered
Most basic of the will kits reviewed. Instructions are poor, and the lack of explanatory notes and structure in the document means it's not suitable for even a straightforward will as it's very easy to make mistakes.
State Trustees Will Kit (NSW)
Description: Will form and comprehensive guide
- Clear instructions as to when it's appropriate to seek expert advice
- Explains superannuation issues well
Well-structured, easy to follow will kit. Adequately deals with most issues with additional explanatory notes throughout the document. The clauses dealing with the distribution of the estate and the specific signing areas at the bottom of each page for the will maker and witnesses make it easy to use and it may do the job for a simple will.
Australian Will Kit
Description: Will form and comprehensive guide
- Good information about choice of executor and options available
- Very detailed explanation of capital gains tax and other tax issues
- No space for witnesses to sign each page, so will may not be valid
- Discussion about who could challenge the will is not entirely correct
- Superannuation issues not adequately explained
Will kit deals with most issues adequately. A relatively well informed user may be able to complete a simple will.
Legal Wills Made Easy - Greenmonts
Description: Will form, template will and guide
- Structure of the kit is good and relatively easy to follow
- Disclaimer notes that the guide is not a substitute for legal advice and that the kit contains only simple wills
- Explanation about distribution of superannuation is ambiguous
- No provision or explanation as to when it would be appropriate to seek tax advice
No fundamental issues. A well-informed user may be able to successfully complete a simple will.
Willkit for couples – WilPac
From: Available at online bookstores
Description: Will form and short brochure
- Main issues in relation to children are adequately explained
- Doesn't deal with taxation and superannuation appropriately
- No clear instructions to get expert advice when in doubt – suggests that in most cases the input of a solicitor isn't required and that a will can be completed in under an hour
Somewhat misleading and raises concerns. Not recommended even for the well-informed user as their affairs may be more complicated than they think and there is no guidance in the kit about when to seek advice.
- Rod Cunich Manages Slater & Gordon's National Wealth Protection and Estate Planning Division. He's been the director of numerous companies and not-for-profit organisations and has also lectured in Australia and around the world. Author of 'Understanding Wills and Estate Planning'.
- Dr John de Groot Special Counsel, with contributions by Associates, Sarah Ramsey and Emma Nisbet. Past chairman of the Queensland Law Society's Succession Law Committee and its Advisory Committee on Specialist Accreditation (Succession Law). Adjunct Professor University of Queensland. Author of 'Wills Probate & Administration Practice (Qld)' and co-author of 'Family Provision in Australia'.
- Andrew Simpson Principal and head of Maurice Blackburns' National Will Dispute Practice. He was awarded a Churchill Fellowship in 2004 and visited Canada, the US and the UK to examine international approaches to estate planning and elder law. Author of estate planning guide 'You Can't Take it With You'.
How we analyse the will kits
Each will kit was reviewed by two external legal experts along with CHOICE staff. We looked at the structure of the will kit and the guidance offered regarding children, the executor, superannuation and taxation. For each kit we also checked that a simple will could be completed by a well-informed user who has familiarised themselves with the topic, for example a married couple with or without dependent children.
What happens if you don't have a will?
If you die without a will, your estate will be distributed to your family according to a standard formula, which differs state by state. For example, if you're married or in a defacto relationship and have children from a previous relationship:
- In NSW, your spouse gets the first $350,000 of your estate, your personal effects and half of the rest of the estate; your children get what's left.
- In Victoria, your spouse gets the first $100,000 of your estate, your personal effects and one third of the rest of the estate; your children get what's left.
- In Queensland, your spouse gets the first $150,000 of your estate, your personal effects and one third of the rest of the estate; your children get what's left.
In many states your will is no longer valid if you marry or get divorced. If you're separated but not divorced, your ex-partner can normally still inherit. So a standard formula may not cover your specific situation and wishes.
Checklist: How to draft your will
While the rules vary across the states, there are some common things to keep in mind:
- You must be at least 18 years old or married. The will must be in writing, and you must be of sound mind and understand the implications of making a will.
- Be clear. Rather than simply writing 'my spouse', state their full name.
- Your will must be signed in the presence of two witnesses, who also need to sign the will. It's best for the witnesses and the will maker to also sign each page. Also ensure the witnesses aren't beneficiaries or the spouse of a beneficiary.
- Appoint an executor. The executor's job can be onerous and time consuming. For example, the executor may need to apply to the Supreme Court for probate – a formal document to get permission to administer your estate, lodge a tax return and establish any trusts (for example, if you have young children). Appoint a substitute executor just in case, such as a solicitor.
- Update your will when your circumstances change. A new de-facto relationship, marriage, separation or divorce, having a baby, death of a beneficiary or your executor becoming unavailable are some common examples. As a rule of thumb, review and update your will every five years.
- Get legal advice. This can cost anywhere between $200 and $1000 (for a couple).
- Keep your will in a safe place.
Traps with drafting your own will
- Financial arrangements made in your lifetime, such as debts, don't die with you – they must be honoured by your estate.
- Superannuation is a minefield: unless you have a current binding nomination, selecting the beneficiaries may be up to the discretion of the trustee of your fund.
- Even if you disinherit immediate family members or dependants, they may still be able to contest your will. They would normally need to convince the court that you have failed to make adequate provisions for their maintenance, education or advancement in life.
When do you need legal advice?
There are a lot of issues – most people wouldn't realise you may need special attention to make sure your will is valid and your wishes will be carried out. Slater & Gordon's Rod Cunich says issues to consider may include the following:
- a blended family
- you're separated from a spouse and have not yet had a property settlement
- stepchildren or other non-relatives who are (or claim to be) dependents
- where the superannuation ends up when you die, and the resulting tax implications
- property you wish to give to someone, which would otherwise automatically go to someone else such as a joint owner
- a gift of shares or other property that you sell before you die
- a company or family trust.
Mother, son and lover – who benefits?
Dan is an only child. He had worked for 23 years in the family business in NSW. After the death of Dan's father, the ownership of the business passed on to his mother Pat. Then, Pat found companionship with Frank, an old family friend. Frank moved in and they lived together as a couple.
Three years later, when Pat passed away without a will, NSW intestacy laws governed who benefited from her estate. As Pat's de-facto, Frank inherited the first $350,000 of the estate, all of Pat's personal effects and 50% of the balance of the estate. Dan got the other 50%, which wasn't enough for Dan to guarantee the continued survival of the business. Dan now faces an uncertain future.
Source: Rod Cunich, Understanding Wills and Estate Planning, 2016