Will kits are often marked as a cheap and easy way to conduct your estate planning without the assistance of a wills and estates lawyer. Will kits, however, are mostly ineffective in organising large and complex estates, and can even create complications for simple estates. In many instances, people are better off seeking legal advice in the first place. 

The recent decision of Marlow v Croft [2020] NSWSC 251 demonstrates the complications that may arise when using a will kit. 

In this case, the testator used a will kit to gift the residue of his estate to his wife:

I give the residue of my estate to MY WIFE VIOLET MARLOW AND TO STAY AT (address) TILL SHE DIES THE HOUSE OR BELONGINGS NOT TO BE SOLD UNTIL THE DEATH OF MY WIFE VIOLET MARLOW ALSO ALL MONEY IN BANK GOES TO MY WIFEBut if he/she/they predecease me, then I give the residue of my estate to MY CHILDREN.”

Following his death, the testator’s wife moved to live with a relative in Queensland. 

The Court was left to decide what was to happen to the house, as the will did not contemplate the testator’s wife moving away. The Court had to consider whether the testator had left his wife a right of residence (whereby she had a right to live in the house); a life interest in the house for the duration of the rest of her life; or an absolute gift of the house, whereby she could do with the house as she chose. 

The Court said that the house appeared to have been given as an absolute gift to the testator’s wife; however, a complete gift of the house was inconsistent with the direction not to sell the house until his wife dies, indicating that she had a right of residence.

The Court also considered the possibility of a life interest; however, the will did not dictate what was to happen to the property when the wife died, other than for it to fall into the residue. 

The Court concluded, after debating between an absolute gift, right of residence, or life interest, that the testator likely intended to make an absolute gift of the property. The Court also cautioned, however, that if that conclusion were wrong, it would be a life estate and not a right of residence. 

Thus, although a will kit may seem like a cheap and easy way to do your will and gift your estate, particularly if you have a small estate and are planning to gift everything to your spouse and then to your children, it can end up in extensive and expensive litigation.

It may therefore save time and money by simply speaking to a wills and estates lawyer in the first place to ensure that your estate is gifted and then administered efficiently. 

 

**Assisted by; Caroline Reilly**

 

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