In recent years, the popularity of do-it-yourself (DIY) and Online Will kits has surged, promising a quick and cost-effective solution for estate planning. However, the Queensland Courts are sounding the alarm about the significant risks associated with these seemingly convenient options.
The Dangers of DIY and Online Wills
DIY and Online Wills, while appearing straightforward, can lead to numerous complications that may only surface after the testator’s death. These issues can result in costly legal battles and an unintended distribution of assets.
Common Pitfalls
Some common pitfalls of preparing your own Will follow:
- Improper Execution: many DIY and Online Wills are not signed or witnessed correctly, potentially invalidating the entire document;
- Ambiguous Language: the wording in DIY and Online Wills is often unclear and open to interpretation, leading to disputes among beneficiaries and may require an executor or administrator to apply to the Court for interpretation;
- Too simple: generic templates often fail to address complex family situations or unique asset structures;
- Deals with assets you don’t own: such as assets held in trust or superannuation. Trust assets and superannuation must be dealt with in accordance with relevant trust deeds (including the rules of your superannuation fund);
- Increased Vulnerability to Challenges: poorly drafted DIY and Online Wills are more susceptible to challenge through the Courts; and
- No consideration for if you lose capacity: DIY and Online Wills will not deal with a situation where you lose the capacity to make or communicate decisions.
The Sorati Case: A Cautionary Tale
The Supreme Court of Queensland recently determined a common pitfall of DIY and Online Wills, that is the issue of testamentary capacity.
In Sorati & Anor v Sorati [2025] QSC 14, the court grappled with the validity of a Will prepared with a “Will Kit”. Query was raised by Mr Sorati’s sons over the validity of the Will on the basis that Mr Sorati lacked testamentary capacity at the time the Will was made. There was clear evidence that Mr Sorati was suffering from cognitive decline at the time he made the Will.
After what was no doubt a very expensive court proceeding and hearing, the Court determined that Mr Sorati did not have the requisite testamentary capacity when he made the DIY Will and pronounced the validity of his previous Will.
Relevantly, the Court ordered that the costs of this proceeding be paid by the estate, the obvious result being that the beneficiaries will receive far less of an inheritance.
The Value of engaging an experienced estate planning lawyer
Engaging a legal professional who is experienced in succession law and estate planning offers several significant advantages:
- Clear Language: lawyers can draft clear, unambiguous documents that accurately reflect your intentions;
- Comprehensive Estate Planning: professional advice ensures all aspects of your estate are considered, including:
– in the event that you lose capacity;
– strategies for superannuation and life insurance;
– flagging potential tax issues and providing advice on strategies; and
– dealing with complex asset structures and problematic family dynamics; - Reduced Risk of Litigation: a properly considered Estate Plan is likely to address and, where possible, reduce the risk of challenge to validity, interpretation and distribution;
- Future Planning: an experienced estate planning lawyer can offer advice on strategies for future asset protection for your spouse and children, reducing the risk of your assets falling into the hands of a potential new spouse and their children; and
- Peace of Mind: knowing your estate plan is sorted can provide reassurance that your wishes will be carried out as intended.
Contact us to discuss a comprehensive estate plan
While DIY and Online Wills may seem like an attractive option, the potential risks and future costs far outweigh the initial cost savings. The recent Sorati case highlights the importance of seeking professional legal advice when preparing your estate plan. By doing so, you can better safeguard your legacy and spare your loved ones from unnecessary stress and legal complications during an already difficult time.
Reach out to us to discuss your estate planning needs. At Cronin Miller Litigation, we take a holistic approach to estate planning which will consider your current circumstances and specific wishes for the future.
