A Curse on Your Family”: The Haunting Danger of the Post Office Will

Post office will kits are readily available, inexpensive, and widely used. For many people, they represent an appealing solution to a task that is easy to defer, and the assumption that "something is better than nothing" is understandable. However, in our experience, a poorly prepared will can create consequences far more serious and costly than having no will at all.

This article outlines several of the key limitations of DIY will kits, including a judicial commentary from the Supreme Court of Western Australia and two matters encountered in our own practice that illustrate how these documents routinely fail the people who rely on them.

Judicial Commentary: A Word of Warning from the Courts

The risks of DIY will kits are not merely theoretical. In Rogers v Rogers Young [2016] WASC 208, the Supreme Court of Western Australia was required to construe a will prepared using a kit purchased from a newsagency. Despite the testator's intentions being straightforward, leaving her entire estate to her only child to be held on trust until age 25 ambiguous drafting gave rise to contested proceedings involving 20 plaintiffs and legal costs to the estate of approximately $200,000.

Master Sanderson observed:

"On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a 'Will Kit' are not much better. This case proves the point. The disposition effected by the will is not complicated, and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the Will had been drafted by a competent legal practitioner, this problem would not have arisen, and the parties would have been spared a great deal of trouble and expense."

The observation of Master Sanderson that will kits represent “a curse” reflect what practitioners in this area see regularly. It is not only complex estates that give rise to difficulty - it is often the simplest of intentions, inadequately expressed, that cause the greatest harm.

Common Deficiencies in Post Office Will Kits

DIY will kits fail for a number of recurring reasons. The most significant include:

Execution errors: A will must be signed by the testator in the presence of two independent adult witnesses, both present at the same time. Where this requirement is not met, the will may be classified as informal and may require a Supreme Court application before probate can be granted - a process that is both costly and time-consuming.

Ambiguous or legally ineffective language: Will kits use generic, templated language that is not tailored to the testator's individual circumstances. Imprecise wording can render provisions legally uncertain or unenforceable, requiring the court to determine the testator's intention after the fact.

Failure to address foreseeable contingencies: A well-prepared will anticipates a range of scenarios: the death of a beneficiary before the testator, the incapacity or death of an executor, the birth of additional beneficiaries, and the treatment of assets acquired after the will is made. Will kits do not prompt for these considerations, and in the absence of appropriate provisions, the consequences can be significant.

No legal advice: The drafting of a will is not simply a matter of completing a form. It requires an understanding of succession law, the testator's personal and financial circumstances, and the legal effect of the language used. Will kits, by their nature, provide no such advice.

Experiences from Our Practice

The curse of the homemade will is not lost on us – as we have firsthand experience of the unfortunate consequences of relying on a DIY will kit:

Matter 1: Executor Appointment and the Absence of Incapacity Provisions

A client came to us following the incapacity of the executor named in their late parent's post office will. The will appointed a single executor with a substitute - however, the drafting was such that the substitute's appointment was conditional only upon the primary executor having predeceased the testator. There was no provision for the circumstance in which the executor was alive but lacked capacity to act.

When the primary executor became incapacitated and was unable to administer the estate, the substitute executor had no authority to step in. Because the will had not anticipated this scenario, no person had standing to apply for a grant of probate in the ordinary course. The family was instead required to make an application for Letters of Administration - a more complex, time-consuming, and expensive process than a straightforward probate application.

This was, at its core, a simple estate. There was no dispute as to the testator's intentions, no complex assets, and no family conflict. The procedural difficulty arose entirely from the inadequacy of the will's executor provisions. A properly drafted will, which addressed both the death and the incapacity of the executor, would have avoided this outcome entirely.

Matter 2: The Assumption That Children's Wills Govern Distribution

We have also acted in a matter involving a client who had prepared a post office will leaving their entire estate equally between their adult children. The client had not included any provision addressing what would occur if a child predeceased them.

When we raised this with the client, they indicated they were not concerned — their belief was that if one of their children died before them, that child's share would pass in accordance with the deceased child's own will. This is a common assumption, and it is incorrect.

Where a beneficiary predeceases a testator and the will contains no substitution clause, the gift to that beneficiary will lapse. The lapsed share does not pass under the deceased beneficiary's will; rather, it falls into the residue of the testator's estate, which may then pass in accordance with the remaining provisions of the will or, in some cases, on intestacy. The outcome is almost always inconsistent with what the testator intended.

The Real Cost of a Will Kit

Will kits are typically purchased for between $20 and $50. However, the costs that can arise from a deficient will - Supreme Court applications, contested probate proceedings, construction suits, and protracted estate administration - frequently run to tens of thousands of dollars or more. Those costs are borne by the estate, reducing what ultimately passes to the very beneficiaries the testator sought to benefit.

There is also a less quantifiable cost: the stress, delay, and potential family conflict that accompanies disputed or ambiguous estate administration.

Engaging a solicitor to prepare your will is not an unnecessary expense. It is the only reliable means of ensuring that your intentions are accurately recorded, that your executor has the authority and guidance to act, and that your estate is administered efficiently and in accordance with your wishes.