The short answer is no – legally, you don’t need a lawyer to make a Will in Australia. You can write your own Will by hand, use a Will kit from a newsagency, or complete an online Will template. As long as the Will meets the formal requirements under Western Australian law, it can be valid.
But here’s the more important question: should you make a Will without a lawyer?
For most people, the answer is also no. And we’ll explain why.
The legal requirements seem simple
Under the Wills Act 1970 (WA), a Will is valid if:
- It’s in writing
- It’s signed by the Will-maker (or signed by someone else in the Will-maker’s presence and at their direction)
- The signature is made or acknowledged in the presence of two or more witnesses present at the same time
- Those witnesses attest and sign the Will in the presence of the Will-maker
On the surface, this seems straightforward. Write down who gets what, sign it in front of two witnesses who also sign, and you’re done.
If only it were that simple.
Why DIY Wills so often go wrong
We see problematic DIY Wills regularly. Sometimes they’re completely invalid. More often, they’re technically valid but create problems, ambiguities, or unintended consequences that could easily have been avoided.
Here are the most common issues.
1. Execution problems
Getting the signing process right is trickier than it seems. We’ve seen Wills where:
- The witnesses signed before the Will-maker
- Only one witness was present
- The witnesses weren’t both present at the same time
- A beneficiary acted as a witness (which invalidates any gift to them)
- Pages weren’t properly identified as belonging together
- The Will-maker didn’t sign the Will, just their name was typed
Any of these errors can render the Will invalid or create disputes about whether it was properly executed.
2. Ambiguous or unclear language
DIY Wills often contain vague descriptions like:
- “My house goes to John” (which one, if you own multiple properties?)
- “I leave everything to my children equally” (does this include stepchildren? grandchildren?)
- “My jewellery goes to Sarah” (all of it? specific pieces? what about items acquired after the Will?)
Professional Wills use precise language that’s been tested in courts over centuries. There’s a reason lawyers use specific terms and phrases – because we know how the Court will interpret them.
3. Failing to deal with all assets
Many DIY Wills forget about certain assets or don’t include a proper residuary clause (the clause that catches everything not specifically mentioned). This can result in partial intestacy, where some of your estate is distributed according to law rather than your wishes.
4. Not considering tax implications
While Australia doesn’t have death duties, there can be significant tax consequences flowing from how you structure your Will, particularly regarding:
- Capital gains tax
- Superannuation death benefits tax
- Income tax on trust distributions
A poorly structured Will can result in beneficiaries paying unnecessary tax.
5. No protection for vulnerable beneficiaries
A simple Will might leave assets outright to beneficiaries. But what if a beneficiary:
- Is going through a relationship breakdown?
- Has creditor problems or is bankrupt?
- Lacks financial management skills?
- Has a disability and receives means-tested government benefits?
Testamentary trusts and other protective structures can shield beneficiaries from these risks, but they need to be properly drafted.
6. Inadequate executor provisions
DIY Wills often fail to give executors sufficient powers to deal with various situations that might arise. They might not address:
- What happens if the named executor dies or can’t act
- Whether executors can be paid
- What powers executors have regarding business assets, digital assets, or overseas property
- How disputes between executors should be resolved
7. Unintentionally creating Family Provision Claims
A Will that seems fair to you might create significant risks of challenge. An experienced lawyer can identify these risks and help you structure your estate plan to minimise them – or at least document your reasoning clearly if you’re making potentially contentious decisions.
When DIY Wills might be appropriate
There are limited circumstances where a simple DIY Will might be adequate:
- Your estate is very small and simple
- You’re leaving everything to one person with a clear alternative if they predecease you
- You have no children, no complex family relationships, and no significant assets
- You’re making a temporary Will in an emergency situation (planning to have it professionally redone later)
Even in these situations, there’s value in professional advice. But the risk of getting it wrong is at least lower.
When you definitely need a lawyer
You should absolutely seek legal advice if any of the following apply:
- You own real estate
- You have superannuation or life insurance
- You have a business or business interests
- You have children from multiple relationships
- You want to exclude or limit provision for a family member
- You have family members who might challenge your Will
- You have assets overseas
- You have beneficiaries with disabilities or special needs
- Your estate is worth more than $500,000
- Your family situation is complex
- You’re uncertain about any aspect of estate planning
In reality, this covers the vast majority of Australians.
The real cost of getting it wrong
People often choose DIY Wills to save money. A Will kit might cost $50, while a professionally drafted Will might cost $500 to $2,000 (or more for complex estates).
But consider the potential costs if something goes wrong:
- Rectification proceedings to fix an invalid or ambiguous Will can cost tens of thousands of dollars
- Family provision claims can cost $50,000 to $100,000 or more to defend
- Unintended tax consequences might cost beneficiaries thousands
- Disputes between beneficiaries can destroy family relationships
- An invalid Will means your estate is distributed under intestacy rules, which might bear no resemblance to what you wanted
The cost of professional Will drafting is insurance against all of these outcomes. It’s one of the best value legal services you can obtain.
What a lawyer actually does
When you engage a lawyer to prepare your Will, you’re not just paying for document drafting. You’re receiving:
- Comprehensive advice on estate planning strategies, tax implications, and asset protection
- Proper needs analysis to ensure your Will addresses your specific circumstances and objectives
- Identification of potential problems you might not have considered, such as risks of claims or challenges
- Professional drafting using legally precise language that’s been tested in courts and will not lead to costly disputes in the future
- Proper execution with the lawyer ensuring the signing process is completed correctly
- Ongoing relationship so you can update your Will as circumstances change
But I’ve already made a DIY Will – what now?
If you’ve already prepared your own Will, it’s not too late to have it reviewed by a lawyer. We can assess whether:
- The Will is technically valid
- It clearly expresses your intentions
- It covers all your assets
- There are any ambiguities or problems
- There are better ways to structure your estate plan
Often we can incorporate the good parts of a DIY Will while fixing problems and adding protective provisions.
Final thoughts
You don’t need a lawyer to make a Will in the legal sense – but you almost certainly need one in the practical sense.
Your Will is one of the most important documents you’ll ever sign. It determines what happens to everything you’ve worked for throughout your life. It affects the people you care most about. And unlike most other documents, you won’t be around to clarify what you meant if something goes wrong.
Protect your legacy with a professionally drafted Will
The cost of professional Will drafting is minimal compared to the value of your estate and the peace of mind of knowing it’s been done properly.
At Solomon Hollett, we understand that every estate and every family is different. We take the time to understand your circumstances, explain your options clearly, and draft Wills that accurately reflect your wishes while minimising risks and protecting your beneficiaries. Get in touch with our estate planning lawyers today.
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