Don't Use a "Will Kit"

When a person dies without a legally operative and valid will, they die ‘intestate’.

This means there is no executor appointed to administer their estate. Below is a case study example of things that can go wrong by using a Will Kit instead of having your last will and testament drawn up by a qualified professional.

Dying Intestate – A Case Study

At Willpower Legal we had a recent case involving an 82-year-old Dutch woman who died having prepared her will using a ‘Will Kit’, which she bought for $22.50 at her local newsagency. The deceased was born in the Netherlands but moved to Australia with her husband many years ago. She was adopted at a young age and had siblings who were natural born children of the deceased’s adoptive parents.

She died a widow leaving three adult sons in late 2020. In her Will Kit will she stated:

“I appoint the executors to decide the distribution of assets”

This simple statement of the testatrix invalidated her will and made it of no legal effect whatsoever!

It sought to delegate the power of disposition of the deceased’s property to her executors. A testator cannot delegate his or her power of disposition in his or her will. The inclusion of the words “executors to decide” does not specify the final wishes of the deceased but rather it delegates the disposition of her estate to third parties. See RE “DDM” File No 02/0352; Ex Parte The Full Board Of The Guardianship And Administration Board [2003] WASCA 268 (per Heenan J at para 72)

Consequences of Dying Intestate

  1. The deceased’s will was invalid and therefore she has died intestate.
  1. No executor was legally appointed and recognised at law which opened up the possibility for any of the deceased’s relatives to contest for that right. This could have easily lead to expensive court action.
  1. Without a valid will, the distribution of the deceased’s estate would be determined by section 14 of the Administration Act 1903 (WA) which may not have coincided with the true wishes of the deceased.
  1. The deceased’s sons had to apply for Letters of Administration instead of a grant of probate, involving greater legal costs due to the more involved process.
  1. As the deceased was Dutch, her documents such as birth and marriage certificates had to be translated from Dutch into English and these documents were not easily located. The Registry of Births, Deaths and Marriages refused to issue the deceased’s death certificate until after her marriage certificate was translated to English.
  1. The deceased’s estate incurred unnecessary costs which could have easily been avoided had the deceased had her will prepared by an experienced, competent solicitor.

Summary

Whilst using a Will Kit is a cheaper option in the short term, it may result in totally unintended consequences for the will maker’s beneficiaries and costly legal advice and representation in the Supreme Court of WA.

Willpower Legal will ensure that your last Will & Testament is not only valid and legally enforceable, but also reflects your last wishes creating a lasting legacy. Our legal fees are reasonable and affordable – by spending a bit more money now on a solicitor, it could save your family a whole lot more money in the future by ensuring that they do not end up in the Supreme Court fighting over your estate.

There simply is no substitute for engaging a competent solicitor if you want to create a lasting legacy.