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DIY wills another nail in the coffin

DIY wills another nail in the coffin

Gold Coast family lawyer Alison Hiscockssays people trying to cut costs by using "do it yourself" will kits could be committing their beneficiaries to expensive and divisive court cases later.…

Gold Coast family lawyer Alison Hiscockssays people trying to cut costs by using "do it yourself" will kits could be committing their beneficiaries to expensive and divisive court cases later.

It may be a sign of cost-cutting during lean economic times but I am encountering an increasing number of legally invalid or deficient wills, prepared by people using "do it yourself" will kits sold through newsagents and on the internet.

DIY will kits have been around for some years, marketed as a cheaper method than lawyers for preparing a will, but people do not realise they could be a recipe for disaster.

In general the legal profession has taken a benign public stance toward DIY wills, with a few law firms trying to leverage business by promoting them, while others generally try to pretend such things do not exist.

In my view as a regional sole practitioner, the legal profession has failed itself by not doing more to warn our clients about the pitfalls of DIY wills and similar DIY Enduring Power of Attorney documents.

Above all, the profession has failed to protect what is - for many smaller practitioners - our core bread and butter legal work.

While the big nationals can spread their fee-generating potential among a slew of in-house legal specialities, sole practitioners - who constitute a significant percentage of Australia's regional and rural solicitors - often depend on wills and conveyancing work as our frontline income-producing opportunity.

In my view DIY will kits are contributing to the decline of legal services in regional and rural Australia.

A recent Law Council survey of 1185 non-metropolitan lawyers reportedly predicted a looming crisis in regional Australia, with more than 40 per cent of country practitioners saying they don't intend to be in the profession in five years' time.

Many have indicated they intend retiring within the next 10 years, while one in every three lawyers aged between 20 and 29 admitted they were planning a move to the big cities.

Lawyer shortages are reportedly worst in the Northern Territory, South Australia and Queensland.

As a sole practitioner in a regional area of Queensland I see a direct link between declining regional legal services and the ease with which potential clients can now sidestep us and access our bread and butter legal work through other means.

To us, wills work is often the first time a person ever makes contact with a solicitor and that initial contact is crucial for future business. Wills and conveyancing work are our frontline income earners.

In Queensland, conveyancing work must still be handled by a solicitor. If that restriction was ever dropped and commercial conveyancers allowed into the market, it would cripple regional sole practitioners.

Add in the availability of DIY wills and I would simply shut up shop, and I know of at least a dozen other sole practitioner practices in the region that would do the same.

As documents, DIY wills may be legal, but the people using them do so in ignorance, and this ignorance could have expensive and divisive consequences for their beneficiaries.

When I talk to groups I say that a will kit will is valid as long as it has been properly completed, signed and witnessed. The problem is that I see very few that have been properly completed, signed and witnessed.

What I usually see are people who have done a DIY will because they were under either a time or financial pressure and then when the pressure is off and come to see me to get a "proper" will done. This is when I see how deficient their DIY wills are.

An incorrectly prepared DIY will could lead to a full-blown dispute among beneficiaries after a person's death.

The most common problem I see is that people only appoint one executor, such as their spouse, but not an alternate in case the spouse dies first.

Another problem is that they leave everything to the spouse but don't make provision as to who will inherit if the spouse dies first. Another common mistake is that people leave certain things in their will but don't include a residue clause to distribute everything else.

As regards witnessing, amendments to the Succession Act in 2006 have relaxed the requirements for correct witnessing, but it is still important that the will be correctly witnessed.

Every person has specific wishes as to how they want their assets distributed after their death and too many think they can draft their own will without needing professional advice.

Solicitors often have to deal with the aftermath of situations like this, when the family left behind is scrapping over what was meant or intended in the will. Too often it ends up in court. Penny-pinching measures could consume an estate

Professional legal advice means that a lawyer can spot an ambiguity in a will and fix it while the person is still alive. Once they are gone, estate executors only have the written words of the will to guide them, so it's crucial to get it right.

An unclear or invalid will is guaranteed to cause disputes that inevitably end up in court.

It's timely to issue similar warnings for people using Enduring Power of Attorney kits (EPAs) which can be purchased from some newsagents or downloaded from the internet.

I often see EPA kits not properly filled out. Wills and EPAs that are deficient can be declared invalid. They are supposed to be about peace of mind, so a person can know their wishes are being attended to.

But taking a penny-pinching approach to save a few bucks now could spell disaster later.

DIY legal documents such as will kits are a fact of life now, and the best we can do is caution clients as to their risks. I do not think the profession should be endorsing them in any way.

They are a contributory factor in the decline of legal services in regional Australia and as a profession we should not condone anything which undermines the regional community's access to proper legal services.

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DIY wills another nail in the coffin
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