Drafting Your Will - Why it is Better to Have a Lawyer

We have all heard the stories of family members falling out and spending large sums of money in legal fees to settle disputes over the distribution of family assets.

Having a will that deals with the distribution of your estate is the simplest and most effective way to avoid costly legal disputes, yet many people do not have one of their own. Perhaps this is due to the fact that thinking about wills and estates is not a pleasant thing to do, or perhaps it is a case of simple laziness. Regardless of the reason, it is important to understand why having a valid will in place is so important.

A carefully drafted will ensures that the assets forming the estate of the deceased are dealt with according to their wishes. It removes uncertainty with respect to the estate and minimises the likelihood of disputes arising among surviving family members. A will may also be used for other purposes, such as appointing a guardian to look after minor children, creating a testamentary trust with respect to one or more beneficiaries, or making specific funeral arrangements.

Why do I need a lawyer?

It is always preferable to seek legal advice prior to commencing preparation of your will. Lawyers are trained to understand and interpret the relevant law and can provide important advice which allows you to make informed decisions as to the distribution of your estate. Lawyers are also bound by strict rules to ensure that a certain standard if practice is maintained at all times. Perhaps most importantly, a lawyer will ensure that your will is correctly executed and witnessed in accordance with the relevant rules of your jurisdiction.

Beyond drafting your will, a lawyer can provide advice regarding property that does not pass under a will, such as:

  • assets of a family trust;
  • insurance policies on the life of the deceased which are owned by another; and
  • assets of companies (both public and private).

Specific legal advice is often required with respect to the above types of property and others that do not pass under a will, in order to ensure that appropriate steps are taken to deal with those assets in a way that is legally enforceable. Neglecting to obtain legal advice on these issues can have any number of unintended consequences.

What are the consequences of not having a will

Failure to prepare a will means that following your death your assets will be distributed in accordance with the "intestacy rules". These rules do not take into account your individual circumstances or personal wishes. As a result, many costly legal disputes arise which would have been avoided if a valid will had been in place. Other examples of where instestacy may occur include:

  • After making a valid will (that has not been made in contemplation of marriage or divorce) a person divorces or marries;
  • If the person making the will is of unsound mind, or mentally ill or otherwise incapacitated at the time of making his/her will; or
  • If the will is damaged to the extent that it cannot be read or interpreted.


As you can see from the examples above, it is important to not only have a will, but to make sure that it is updated at appropriate intervals (for example after a major life event, such as marriage, divorce, the birth of a child and so on) and therefore remains valid and likely to withstand scrutiny in the event of death. A good rule of thumb is to consult a lawyer to see if your will needs to be updated whenever a significant change in your life occurs.

A small investment of time and money to obtain advice and have your will drafted by a lawyer will minimise the likelihood of unintended negative outcomes and give you piece of mind going forward in life.

This guide above contains general information only, and we recommend contacting EMS Legal for clarification and specific advice.