Want your last wishes honoured? Don’t draft your will in your Notes app

It can be easy to forgo the legalities and formalities of planning for life after you’re gone – after all, you won’t be here for it. Yet in the interest of ensuring any inheritance makes its way to your loved ones as you intend it to, your will must be legally sound.

A valid will protects your final wishes from being misrepresented, misconstrued or misinterpreted, providing your nearest and dearest with the peace of mind that your estate is being divided as you intended.

While it might be tempting to consider leaving the legalities for “later on” and just doing it yourself, there are good reasons why you shouldn’t attempt to prepare your will yourself, for example, by just jotting down your last wishes on a Post-it note (something that actually occurred in 2013).

A DIY will or “informal will” is when someone chooses not to formally prepare their will in accordance with legal requirements. Instead, they communicate their wishes through simpler means such as a handwritten letter, a text message, a video recording, the use of an online will creation service, or even a digital note left on an iPhone.

The latter serves as the latest cautionary tale I share to discourage anyone from taking a DIY approach to estate planning if they wish to protect their loved ones from a financially and emotionally demanding litigation process upon their passing.

The NSW Court of Appeal recently heard a case that centred around an informal will prepared by a 79-year-old businessman on the Notes app of his iPhone – an approach to estate planning I would implore you to avoid.

Life is unpredictable, and if left unchanged your first will may not be reflective of your wishes for your loved ones upon your passing.

In this instance, the unorthodox “will” led to a three-year legal battle between the two primary beneficiaries, debating the legitimacy of the informal document as an expression of intent for the distribution of the deceased’s estate.

After a drawn-out legal process, the iPhone note was, in the end, determined by the Court to satisfy the requirements of an “informal will”, although it fell short of the legal requirements.

Though often contested, these informal documents can be declared valid by a court if it can be shown (on the evidence) that the document expressed the deceased’s testamentary wishes, and they intended the document to be their final will.

So, what can we learn from this? Despite the result in this instance landing in favour of the DIY will, running the risk of the beneficiaries of your will having to dip into their own piggy banks to pay for legal costs before accessing their inheritance is counterintuitive. The costs of litigating matters like these can be significant.

To ensure your hard-earned wealth can be gifted to your preferred beneficiaries as you intend, here are a few considerations I would encourage you to keep in mind when you consider preparing your will.

Avoid informal documentation. It is essential to avoid preparing informal testamentary documents such as DIY online forms, letters of wishes, video recordings, Post-it notes or anything written without legal assistance when it comes to preparing your will, as the uncertainty of those documents can expose your estate to extensive, time-consuming and expensive disputes.

Your will should evolve as your life changes. Life is unpredictable, and if left unchanged, your first will may not be reflective of your wishes for your loved ones upon your passing.

I recommend reviewing and updating your wills alongside any major life events, such as illness, purchase or sale of major assets, new relationships – or relationship breakdowns, or the death of someone you had listed as an executor or beneficiary.

Be conscious of conflicts. Though the executor of a will is often a trusted member of your inner circle, be careful of potential conflicts of interest. Naming a friend, business associate or adviser – such as a solicitor or accountant – as both executor and beneficiary of a will can open your estate up to potential complications and contention.

To best avoid any uncomfortable circumstances for your loved ones after you are gone, seek professional guidance to help manage and ideally altogether avoid any potential conflicts of interest.

A can-do attitude and a willingness to do-it-yourself may get you far in life; after death, not so much. If you’ve worked hard to build your wealth, the last thing you want is for a lack of proper estate planning to thwart your wishes and disrupt the inheritance you intend your family to receive.

Seek professional advice early. Work with a solicitor to prepare your will. This will help safeguard and secure your loved ones’ financial futures long after you are gone. By clearly documenting your will with the assistance of a legal professional, you reduce the risk of conflict when you’re not around to clarify your wishes.

Emma Blay specialises in Wills and Estates and is Special Counsel at the national law firm Barry Nilsson.

• Advice given in this article is general in nature and is not intended to influence readers’ decisions about investing or financial products. They should always seek their own professional advice that takes into account their own personal circumstances before making any financial decisions.

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