“Homemade” Wills – Can Cost A Fortune

There have been some difficult cases for the supreme Court in the past two years resulting from people trying to do a Will at home in their dying days, or leaving a note written at home attempting to amend a previously made Will. 

To meet the requirements of the Wills Act, a Will should be signed by the Testator in the presence of two witnesses who should also sign the Will.  Assuming the Will maker had capacity and was not under undue influence when the Will was made, meeting these requirements will ensure smooth progress of the Will through the Probate Office leading to a Grant of Probate.

However, failure to comply with the formal signing and witnessing requirements in relation to the Will is not necessarily fatal for the document if it was intended to be a Will.  The Probate Office can accept a Will despite it not meeting the formal requirements, or it can refer the document to the Supreme Court for its consideration.  These are referred to as “informal wills.”

The Probate Office or the Supreme Court will want evidence about the circumstances of the preparation of the document intended to be a Will and an explanation as to why the formal requirements have not been met. This evidence might not be easily obtained.

The Supreme Court has accepted recorded messages, words written on a hospital wall, and almost incoherent notes written by someone on the verge of death without a witness, as being valid Wills.  However, the process of achieving recognition can be a lengthy and expensive one.

The Court needs to be satisfied that the document, which can take the form of notes on paper or a recording or a video, was intended by the maker to be a Will.  This is not always clear.

In some cases, the document prepared at home intended to be a Will is vague and confusing. Not only does the court then need to determine that the document constitutes a Will, but also what it means.

A Will kit can provide a simple Will if its instructions are carefully followed.  However, these Wills are often not clearly written and the instructions are not carefully followed meaning that the document is referred to the Court and an expensive process is undertaken.

The cost of a standard Will made by a lawyer might be $700 to $1,200. The costs associated with an Application to the Supreme Court to have an informal document accepted as a Will might be $20,000, or, if there are parties in disputation caused by confusion as to the meaning of the document, $120,000. 

Justin Hartnett
Principal
T 03 5225 5220 | M 0419 571 840
E jhartnett@ha.legal

Daniela Pavlovic
Principal
T: 03 5225 5227
E: dpavlovic@ha.legal