By Peter Muller, QBM Lawyers

We have worked closely with RFS Advice for several years in estate planning for our mutual clients.  We enjoy working with the RFS Advice team who we have found to be competent and enthusiastic, and who we feel are genuinely motivated to help their clients. 

Sometimes we are asked by clients whether it is really necessary for them to have a lawyer prepare their will or whether a “home-made” will is enough. 

Recently when the question came up, I said that in some cases a home-made will can be fine, but the Supreme Court archives are littered with examples of home-made will disasters, where applications to the court have become necessary resulting in enormous costs to the estate and to the parties, and sometimes where the intentions of the will maker have not been carried out.   

Relatively recent decisions from our Supreme Court have included the following:

  • In the will of Fernando Masci [2014] QSC 281 – poorly drafted home-made will resulted in Supreme Court proceedings requiring 3 days of court hearing and continuing disputes, some of which were ultimately not resolved by the judgment of the court;
  • Re: Jacob Albert Omerod (deceased) [2022] QSC 98 – home made will which was not properly executed and left a partial intestacy (ie where part of the estate was not disposed of);
  • In the estate of Trevor William McMahon (deceased) [2022] QSC 236 – home made will, badly worded, dispute between defacto spouse and children from the will maker’s earlier relationship.  Ultimately, the will was found to be so bad, the will was treated as though the will maker was intestate (ie that there was no will);
  • Re: Matruglio & Anor v Thiknesse-Fittler [2022] QSC 303 – will kit used, incorrectly signed before the remainder of the will were completed.  Will found to be of no effect and orders made to administer the estate as though the will maker had died intestate;
  • Re: Dalziel v Gott & Ors [2024] QSC 276 – in this matter, it appears that a lawyer did prepare the will but there was a dispute as to whether the reference to the “residence” included the adjoining property on which extensive gardens were included.

In addition, there are a number of decisions over the past few years in which the courts have approved “informal wills” where the formal requirements for a will have not been satisfied but the courts have enabled the will to be put into effect because they have been comfortable that it reflected the intention of the will maker.  These might include notes or other records which were intended to be wills.  In a 2017 Supreme Court decision, an unsent text message was put into effect as the will of the maker.

If a matter is to be considered by the Supreme Court, then it is likely to result in the expenditure of significant legal costs.  Even if uncontested, an application to give effect to (say) an informal will is likely to cost well over $10,000.  Where there are disputes, the costs can be many times that amount. 

A lawyer making a will should not simply be taking instructions of names and the will maker’s intention, it involves an assessment of the assets that the will maker intend to give by the will and whether they can be dealt with the way that the will maker intends.  Sometimes assets do not form part of the estate at all (for example joint tenancies and superannuation death benefits), sometimes assets are held by companies or by the trustees of trusts, and sometimes there are taxation considerations applicable to certain kinds of gifts such as investment properties.  If a child is excluded or their share reduced, the lawyer should take details of the reasons and advise of ramifications including the potential for a family provision claim being made against the estate.  Those claims can take years to complete and erode the estate by enormous costs.

It is for those reasons that often the will making process will or should involve a collaboration of a lawyer, a financial advisor, and an accountant to ensure that what the lawyer is preparing does what is intended. 

The result is that in times of increasing complexity with our financial affairs, engaging a lawyer to prepare a will, providing the lawyer with all relevant information, and in the appropriate circumstances having the lawyer work with an accountant and financial advisor could result in quite enormous savings in the long term, and ensure that the estate is received as intended.

So getting back to the question of whether or not it is necessary to have a lawyer prepare your will, I would think that between the risk of missing something important in dealing with assets, exposing the estate to family provision claims that might be avoided if sensible advice was taken, and the risk of the document not complying with the formal requirements for a will, having a lawyer instructed to prepare the will is worth the expense, and will return dividends in peace of mind.