The Hidden Cost of Cheap Wills

The Hidden Cost of Cheap Wills

There is a noticeable increase of online platforms promising a “legally valid” Will for little more than the cost of a dinner out. We get it, or many Australians, that sounds like an attractive alternative to engaging a solicitor.
After all, if the document is legally valid, why spend more? Lawsworth increasingly acts for the executors of estates that demonstrates why this question deserves a closer look. In this article, we speak to just one of the many examples where the deceased has mistakenly trusted the cheap will.

A Real-Life Example

The deceased had prepared a Will through a low-cost online Will platform. The Will had been signed just one day before the testator passed away (alarm bell#1), what lawyers commonly refer to as a deathbed Will.
When the executor instructed us to obtain a Grant of Probate, what should have been a relatively straightforward application quickly became far more complex.
Rather than granting probate, the Supreme Court issued a detailed requisition,requiring substantial further evidence before it was prepared to admit the Will to probate.
The issues raised included:

•  whether the Will had been properly executed;
• concerns regarding the physical condition and completeness of the
  document, including the number of pages;
• and whether the deceased had testamentary capacity at the time the Will was
  signed.

Responding to the requisition required extensive enquiries of the witnesses who had observed the Will being signed, obtaining medical records and evidence from the deceased’s treating practitioners concerning the testator’s capacity at or around the time the Will was executed, and preparing supplementary affidavits for filing with the Supreme Court. Gathering that
evidence after someone has passed away is inherently difficult, often causing significant delays and increasing the legal costs of administering the estate.
What would ordinarily have been a probate application costing approximately $4,000 ultimately cost the estate around $17,000. Importantly, those increased costs are considered a priority payment or testamentary expense and are paid from the estate before any beneficiary received their inheritance.

A Will Is More Than a Document

One of the biggest misconceptions about estate planning is that people are paying a solicitor simply to prepare a document. In reality, they are paying for professional judgment, legal advice, risk
management and a will specifically drafted to the individual needs of the
testator. A solicitor preparing a Will is not simply completing a template. Every Will is tailored to the individual circumstances of the person making it. In doing so, the solicitor considers legal and practical issues that many people would never think to identify. Issues they have spent years studying, training for and gaining experience to recognise and address.

These may include:

• Whether the client has testamentary capacity. This involves far more than simply asking whether the person understands what they are signing. Testamentary capacity is a legal assessment informed by centuries of common law, requiring the solicitor to apply established legal principles to the client’s individual circumstances. The solicitor must be satisfied that the client understands the nature and effect of making a Will, the extent of their assets, the people who may reasonably expect to benefit from their estate, and that they are not affected by a disorder of the mind that distorts those decisions. Without testamentary capacity, a Will may be declared invalid.
• whether there are any concerns about undue influence or coercion;
• whether the Will has been properly executed (or signed) in accordance with the legislation;
• whether the client’s assets are capable of passing under the Will;
• whether substitute executors should be appointed;
• whether the gifts and residue clauses achieve the client’s intended outcome; and
• whether there are any circumstances that may give rise to future disputes or failed bequests.
  Just as importantly, the solicitor takes and retains notes of the advice provided
  and the steps taken during the process.

The Importance of a Solicitors File Note

If a Will is questioned after death, the Will itself is often only part of the evidence.
The solicitor’s file may contain:

• detailed attendance notes;
• records of discussions regarding testamentary capacity;
• witness details;
• explanations of the client’s instructions;
• correspondence with family members;
• and, where appropriate, medical evidence obtained at the time the Will was made.

That evidence can become invaluable if the validity of the Will is later challenged or if the Court seeks further information during the probate process. Trying to reconstruct those circumstances after someone has passed away is invariably more difficult than recording them properly at the time.

Deathbed Wills Require Particular Care

Deathbed Wills are not uncommon, nor are they necessarily invalid, but they rarely (if ever) go unchallenged by the Supreme Court.
However, they often attract greater scrutiny because the circumstances naturally raise questions about the testator’s health, capacity and the circumstances in which the document was prepared.
An experienced solicitor understands those risks; a downloadable template does not.
Where the circumstances warrant it, such as where they are instructed to prepare a deathbed Will, a prudent solicitor may take additional precautions. These may include obtaining medical opinion addressing the client’s testamentary capacity, preparing detailed file notes, carefully recording the client’s instructions and ensuring that the execution of the Will is beyond reproach.
For completeness, the legal test for testamentary capacity is derived from the decision in the case of Banks v Goodfellow (1870). Although the assessment is ultimately a legal one, a solicitor may ask the client’s treating medical practitioner to provide an opinion addressing matters relevant to that test, including whether the client:

(1) understand the nature of the act of making a will and its effects;
(2) understand the extent of the property being disposed of;
(3) are able to comprehend and appreciate the claims to which they ought
to give effect; and
(4) are not suffering from any disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties, nor influenced by any insane delusion in disposing of their property.

Those steps are not simply about protecting the Will, they are also about protecting the people who are left behind to administer the estate.

The Cheapest Option Can Become the Most Expensive

This article is not intended to suggest that every online or DIY Will is defective, nor that every professionally drafted Will will avoid probate issues. Every estate is different, and no solicitor can guarantee that a Will will never be challenged.
What this case does demonstrate, however, is the significant difference between purchasing a document and obtaining tailored legal advice.
In this matter, the Will is understood to have cost approximately $130 to prepare through an online platform.
By comparison, a solicitor will often prepare a relatively straightforward Will for around $600, although the cost will vary depending on the complexity of the estate and the advice required.
At first glance, saving a few hundred dollars may seem like a sensible financial decision.
However, in this case, what would ordinarily have been a probate application costing around $4,000 ultimately cost the estate approximately $17,000 as a result of the additional evidence and work required before probate could be granted.
Those costs were not paid by the person who made the Will. They were paid from the estate itself, reducing the inheritance available to the beneficiaries.
A Will is one of the most important legal documents you will ever sign. The true value of engaging a solicitor is not simply the document you leave behind. It is the legal advice, professional judgment, experience and contemporaneous evidence that stand behind that document.When your loved ones are already navigating grief, the last thing they should inherit is unnecessary delay, uncertainty and legal expense.
At Lawsworth, we believe estate planning is about far more than preparing a Will. It is about protecting your wishes, preserving your estate and giving your family the greatest possible certainty at what is often one of the most difficult times in their lives.

Every person’s circumstances are different, and every estate deserves careful consideration. If you would like tailored advice about your estate planning needs, contact the experienced team at Lawsworth today. We are here to help you plan with confidence and protect the people who matter most.