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Protecting Your Family: The Hidden Risks of DIY Wills and How to Avoid Them

The appeal of a “Quick Fix” is hard to resist, especially when it comes to legal documentation. In Australia, DIY will kits have become a staple in newsagencies and online stores, promising a cheap and easy way to secure your legacy. However, what appears to be a bargain often becomes a financial and emotional burden for the loved ones left behind.

When you are protecting your family, understanding the hidden risks of DIY wills is the first step toward true peace of mind. While these kits claim to be legally binding, they lack the nuance required to navigate complex Australian succession laws. A single misplaced word or a failure to follow strict witnessing protocols can render the entire document invalid, leading to costly litigation or the laws of intestacy taking over your estate.

This guide explores why “doing it yourself” might be the most expensive mistake you ever make and how to avoid them through proper estate planning.

What is a DIY Will? Understanding the Basics

A DIY (Do-It-Yourself) will is a legal document prepared without the direct supervision or advice of a qualified legal professional. In Australia, these typically take two forms:

Physical Kits: Pre-printed templates found in retail stores.
Online Platforms: Digital “will builders” that use a series of prompts to generate a PDF.

While these documents are technically legal if executed correctly, they are static. They do not account for the specific family dynamics, tax implications, or the diverse asset structures (like Superannuation and Family Trusts) that are common in the modern Australian landscape.

The Hidden Risks of DIY Wills: Why “Cheap” Costs More

The primary danger of a DIY will is that you won’t be around to fix the mistakes once they are discovered. Here are the core risks that frequently lead to estate disputes:

1. Failure to Meet Formal Execution Requirements

Each Australian state and territory has specific legislation (such as the Succession Act 2006 in NSW or the Administration and Probate Act 1958 in VIC) regarding how a will must be signed and witnessed. Common errors include:

Using beneficiaries as witnesses (which can void their inheritance).
Using different pens to sign, suggesting the document was altered later.
Failing to sign in the presence of both witnesses simultaneously.

2. Ambiguous Language and “Home-Made” Phrasing

Legal terminology exists for a reason: it has been tested in court. When a layperson uses everyday language to describe complex asset distribution, it creates ambiguity. For example, gifting “my car” sounds simple, but if you own three cars at the time of death, the gift may fail for uncertainty.

3. Overlooking Non-Estate Assets

Many Australians are surprised to learn that Superannuation and Life Insurance do not automatically form part of their estate. A DIY will often purports to give away these assets, but without a valid Binding Death Benefit Nomination (BDBN), those instructions are often ignored by the Super Fund Trustee.

Critical Comparison: DIY Wills vs. Professional Estate Planning

Feature	DIY Will Kit	Professional Solicitor-Drafted Will
Initial Cost	Low ($30 – $100)	Moderate to High ($500+)
Legal Advice	None	Personalised and Comprehensive
Tax Strategy	None (High risk of CGT/Income Tax leaks)	Includes Testamentary Trusts
Asset Protection	Vulnerable to claims	Robust protection for beneficiaries
Validity Risk	High	Extremely Low

How DIY Will Mistakes Impact Your Family

When a will is poorly drafted, the “savings” are immediately erased by legal fees. If a will is contested or requires a “Supreme Court Construction Application” to interpret the meaning of a sentence, the costs are drawn directly from the estate—meaning your children or spouse receive less.

Case Study: The Cost of a Missing Clause

Consider an estate worth $1,000,000. A DIY will fails to include a “residuary clause” (a safety net for assets not specifically mentioned). This oversight forces the estate into partial intestacy. The legal fees to resolve the distribution and the subsequent family infighting could easily cost the estate $50,000 to $100,000 in legal bills—far more than the $1,000 spent on a professional will.

How to Avoid the Pitfalls: A Step-by-Step Framework

If you want to ensure your legacy is handled with dignity, follow this framework for protecting your family:

Step 1: Audit Your Asset Structure

Identify what you actually own. This includes:

Solely owned property.
Jointly owned property (Right of Survivorship).
Superannuation and Insurance.
Interests in Family Trusts or Private Companies.

Step 2: Consider Beneficiary Needs

Are any of your beneficiaries “vulnerable”? This includes those with disabilities, spendthrift tendencies, or those going through a divorce. A DIY will cannot provide the Testamentary Trust protections needed to shield their inheritance from creditors or ex-spouses.

Step 3: Appoint the Right Executor

The Executor is responsible for the heavy lifting. DIY kits often don’t explain the personal liability an Executor takes on. Professional advice helps you choose someone capable or suggests a professional trustee if your estate is complex.

Step 4: Formalise with a Legal Professional

A solicitor doesn’t just “fill in the blanks.” They provide a “Letter of Advice” that explains the why behind your choices, which serves as vital evidence if the will is ever challenged in court.

Advanced Tips for Robust Estate Protection

The “Letter of Wishes”: While not legally binding, a side letter can explain the reasoning behind your distributions, helping to mitigate family resentment.
Mutual Will Agreements: For blended families, these ensure that a surviving spouse cannot change their will to disinherit the children of the first-named deceased.
Regular Reviews: Life changes. You should review your estate plan every 3–5 years or after major life events like marriage, divorce, or the birth of a child.

Common Mistakes to Avoid

Stapling the Will: Believe it or not, staple marks suggest a codicil (amendment) might have been removed, leading to requisitions from the Probate Registry.
Handwritten Alterations: Crossing out a name and writing a new one after the will is signed is usually invalid and can jeopardise the entire document.
Assuming Marriage Doesn’t Affect a Will: In most Australian states, marriage automatically revokes an existing will unless it was made “in contemplation of marriage.”

Frequently Asked Questions (FAQ)

What is the biggest risk of a DIY will in Australia?

The biggest risk is informal execution. If the strict rules of witnessing and signing aren’t met, the court may not grant Probate, leading to a “Letters of Administration” process that is slower and more expensive.

Can a DIY will be contested?

Yes. In fact, DIY wills are significantly easier to contest because they often lack the “contemporaneous notes” a solicitor keeps, which prove the testator had “testamentary capacity” (was of sound mind).

Does a DIY will cover Superannuation?

Generally, no. Superannuation is governed by the Superannuation Industry (Supervision) Act 1993. To control who gets your super, you usually need a separate document called a Binding Death Benefit Nomination.

Are online wills better than newsagency kits?

While online wills often have “logic checks” to prevent simple errors, they still cannot provide the legal and tax advice necessary for complex family situations, such as blended families or business owners.

How much does it cost to fix a bad DIY will?

Correcting errors after someone has passed away can cost between $10,000 and $50,000+ in legal fees, depending on whether the matter goes to the Supreme Court.

Conclusion: Securing Your Family’s Future

Protecting your family is about more than just naming heirs; it is about ensuring that your hard-earned assets transition smoothly without causing a legal nightmare. The hidden risks of DIY wills—from technical invalidity to unintended tax consequences—far outweigh the initial savings.