PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

November 2004

Home Made Wills

A cheap, but not the best, option

In a recent High Court case in Hamilton the difficulties and pitfalls of drafting and executing your own Will were highlighted when evidence indicated that a person created and signed two Wills on the same day.

Home Made Wills

Mr Madsen had obtained a ‘home made will kit’ and used it to record his testamentary intentions. The problem arose after he died, in March 2001,when it was discovered that he had executed two documents both of which purported to be his last Will and Testament.

The two documents were dated “8th December 2000” and “8th 2000” respectively. Both documents were signed by the same witnesses, and the evidence presented to the Court established that the Wills were signed on the same day, but no one could remember which one had been signed first. There was no question that Mr Madsen had testamentary capacity to sign both documents.

The difficulty arose when the trustees tried to obtain probate for the Wills. It required a formal application to the High Court and required all people affected by the Wills, and who might have some claim to the estate, being served with the proceedings and being required to instruct solicitors to represent them.

Fortunately, it was accepted by all concerned that both documents should be granted probate as the Wills were essentially of the same effect, with one Will being slightly more detailed version of the other. In those circumstances, where there was essentially no dispute over the Wills, the Court was able to make orders that suited all parties.

If there had have been a dispute, or if the contents of the Wills were significantly different to each other the case would not have been so straight forward. In any event the matter was not resolved until it went to Court in November 2003, some 18 months after Mr Madsen’s death.

The Court awarded costs of $3,337.50 to each of the two groups of beneficiaries, both of whom were represented by solicitors. Those costs, as well as those of the solicitors for the estate, and the disbursements incurred in the proceedings, were all paid from the estate. The costs awarded were undoubtedly used up in legal fees.

Potential Problems

A home made will kit may be cheaper to prepare than a Will prepared by us, but this case clearly demonstrates that mistakes may cost a lot more than the savings made. In addition there are dangers in preparing your own Will. If it is incorrectly signed or witnessed, it will not be valid. In preparing your own Will you run the risk that it will not adequately deal with the distribution of your assets, and the beneficiaries will need to resort to costly legal proceedings.

The law relating to Wills and their administration is very specific, and strictly adhered to, and the Court is very conservative when dealing with estate matters as its only guidance is the written wishes of the person who has now died. If those wishes are ambiguous, or there is a problem with the execution of the Will, the beneficiaries will suffer due to costs and delays as a result.

The Best Option

We have the expertise to guide you through the Will making process, ensuring that all issues (and the Law) are appropriately considered, and complying strictly with the Wills Act requirements for execution of your Will. We do charge for the Will preparation (the amount of the charge depending upon the complexity of your circumstances) but leave it to you to choose who you want as the Executor of your Will.