It might be argued that the (not-so-secret) secret of the legal profession (at least for estate planning lawyers working in the estate litigation space) is that avoiding specialist legal advice in the will creation process virtually guarantees exponential legal costs when, almost inevitably, troubles arise post-death.
Further, arguably, nothing in the ever-rapid rise of AI seems to undermine the accuracy of this principle.
There is an array of court decisions reinforcing the point, and an overwhelming number of other examples that never get through the entire court process, yet still create massive financial, emotional and energy diversion costs.
For example, as bluntly observed by the courts in Rogers v Rogers Young [2016] WASC 208: ''Homemade’ wills are a curse. Homemade wills which utilise what is sometimes known as a 'will kit' are not much better. (Here the) parties have been put to the trouble and expense of coming to the court seeking directions. 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'.
For a more recent reminder, the decision in the Estate of the late John Currie Docherty Hamilton [2025] NSWSC 932 is relevant.
Here, the deceased was born in a town renowned for having the founding 'Burns Club', a club devoted to celebrating the life and works of the famous Scottish poet and lyricist, Robert Burns
The court acknowledged that while the deceased could apparently speed read, his composing skills, at least when it came to making his last will 'lacked the sublime expressive craft of Burns'.
In particular, the deceased prepared his will using what was described as a “plain English Will kit”.
Notwithstanding the court noting that will kits are designed with the laudable intention of permitting a willmaker to inexpensively prepare a document to effectively dispose of their estate, there are risks - which are often materialised - that the willmaker does not do so effectively by the use of such kits.
In this case, the relevant will kit made what the court noted was a bold claim that it was “The Gold Standard in Will Kits”.
The estate of the deceased was valued at circa $2.5M and at least 2 court proceedings arose in relation to it (as well as a further related proceeding concerning the estate of the deceased's brother).
The decision in this case was focused on whether an (attempted) specific gift of a property to a beneficiary under the self-made will was effective - or whether it failed (with a completely different beneficiary entitled to the asset pursuant to an intestacy).
The court confirmed that ultimately its role in cases involving the interpretation of a will is to determine the one true construction, and thereby give effect to what the willmaker intended by the words used, having regard to admissible extrinsic evidence (see De Lorenzo v De Lorenzo (2020) 104 NSWLR 155).
Ultimately, the court confirmed each case of will construction is different. While there are various principles that provide general guidance, depending on the particular case these principles may have greater or lesser or no application.
As part of a detailed analysis of the rules and case law concerning self written wills, the court confirmed that while the authorities acknowledge that the misuse of language should not too readily defeat the deceased’s otherwise clear intentions, the fundamental problem in this case was that the deceased’s intentions were not clear because a key sentence was incomplete namely the following (which in the will kit were each on a separate line, see the screen shot at the end of this article):
All Monies From The Sale After Mortgage Is Paid To Be Used
To Buy A Property (House/Apartment) Cannot Be Given To Any
Partner Of Friend Or Used For Any Other Purpose IE Business
Ultimately, the court held that there was sufficient intent with the drafting to allow the above wording to make a specific gift of a property acquired after the date of the will to a particular beneficiary, thereby avoiding the application of the intestacy rules in relation to that asset.
As the will was held not to have any provision validly dealing with the residuary (or remaining) assets, those assets were however subject to the intestacy regime.
And to reinforce the theme of this article: the costs of the 3 barristers and 3 law firms appearing before the court were all paid from the estate.
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