Risks of DIY Will kits — save now but your Estate may have to pay later

Case note: Sorati & Anor v Sorati [2025] QSC 14

Preparing a Will can seem like one of life’s administrative burdens. For many, the easiest and cheapest solution to deal with that burden is to download an ‘off the shelf’ Will template or a Will Kit you can purchase at the post office or newsagency.

This might seem like a cheap and effective outcome now, but beware of the risks as it could significantly increase legal and other costs for your Estate, or be the cause of disputes between family members, resulting in an irretrievable relationship breakdown.

The recent case of Sorati & Anor v Sorati [2025] QSC 14 (Sorati v Sorati), decided by the Supreme Court of Queensland on 31 January 2025, highlighted critical issues regarding the validity of a do-it-yourself (DIY) Will, including issues concerning testamentary capacity.

Sorati v Sorati – background to the case

On 5 August 2021, Renato Sorati (Deceased), then age 94, sought to use a DIY Will kit to execute a new Will (2021 Will).

The Deceased and his wife, Robyn Sorati, married in 1991. The Deceased had two sons from a previous marriage, Paul Sorati (Defendant) and Andrew Sorati, while Robyn had three daughters from a previous marriage, Deborah, Belinda and Michele (Robyn’s Daughters).

On 20 October 2017, the Deceased and Robyn sought to update their Wills (2017 Wills). As they had done on three earlier occasions, they engaged their long-standing solicitor, Trinity McGarvie (Magistrate McGarvie).

The deceased’s 2017 Will provided for two possible scenarios, one in which Robyn survived the Deceased and one in which Robyn predeceased him:

• If Robyn survived the Deceased, his sons, Paul and Andrew, were to receive his interest in equal shares as joint tenants in a property located at Islander Road, Hervey Bay (Islander Road Property), or any proceeds from its sale. They were also to receive any further monies invested in any investment accounts held solely in the Deceased’s name. The residue of the Estate was to go to Robyn.
• If Robyn passed away before the Deceased, then Paul and Andrew would have received the Islander Road Property, while Robyn’s Daughters would have shared the proceeds of sale in another property located on the Esplanade at Hervey Bay (Esplanade Property). The residue would have been distributed equally between the Deceased’s seven grandchildren.

In or around July 2019, after Magistrate McGarvie was appointed to the bench, the Deceased and Robyn took back custody of their Wills.

In 2021, the deceased prepared and executed a new will without any legal assistance and in the presence of three witnesses, one of whom was his wife, Robyn.

Under the 2021 Will, Paul and Andrew were to each receive a special gift of $50,000. The residue of the Estate was to go to Robyn.

The Deceased died on 17 January 2023, and the appointed executors sought to apply for a grant of probate of the Deceased’s 2021 Will.

Legal challenge to the 2021 Will

Paul filed a caveat objecting to the grant of probate of the 2021 Will on the basis that the Deceased lacked testamentary capacity at the time the 2021 Will was made.

The challenge highlighted the Deceased’s cognitive decline, including memory loss and diminished concentration, as evidenced by medical records and observations from May 2021 to January 2022. This included a medical certificate from the Deceased’s GP in January 2022, which declared that he lacked decision-making capacity.

Further, testimony revealed the Deceased appeared hesitant to sign the 2021 Will and may have forgotten about his previous wills, including the 2017 Will.

One of the witnesses to the 2021 Will, a retired nurse and Justice of the Peace, recounted explaining to the Deceased that without a Will, the state could claim his assets. This seemed to have prompted the Deceased’s compliance with executing the Will without objection.

Testamentary capacity

The test to be applied for determining testamentary capacity required the Court to be satisfied that the Deceased:

• understood and appreciated the legal significance of making a Will;
• was aware, at least in general terms, of the nature, extent and value of his estate;
• recognised those who could reasonably be expected to have a claim on his estate and understood the nature and basis of their claims; and
• possessed the mental ability, free from impairment, to assess and differentiate between competing claims.

Other aspects considered by the Court:

• a duly executed Will that appears rational on its face carries a presumption of validity. However, that presumption could be rebutted by clear and compelling evidence;
• although the Deceased’s advanced age did not automatically indicate incapacity, it did warrant scrutiny;
• while medical evidence could be relevant, it was not entirely decisive, and the determination of testamentary capacity had to be made based on the entirety of the evidence;
• the Court could consider the evidence of expert opinions, but was not bound to give them a great deal of weight; and
• the question would be determined on the balance of probabilities, based on all available evidence.

Court’s findings

The Court found that the evidence, when viewed as a whole, indicated the Deceased did not fully understand the nature and extent of his estate or recognise those who might reasonably have claims upon it. Consequently, Justice Peter Callaghan determined that the 2021 Will was invalid due to the Deceased’s lack of testamentary capacity at the time of its execution and upheld the validity of the 2017 Will.

The Court found that although the ‘observational’ evidence depicted the Deceased as a 94 year old man who, although frail, was functioning mentally at a level which meant he possessed all of the characteristics necessary to demonstrate testamentary capacity, this evidence needed to be scrutinised with vigilance due to his advanced age and declining cognition, and the fact that a person who would substantially benefit from the drawing of the 2021 Will, Robyn, had both the motive and the opportunity to exercise undue influence on him. Moreover, the 2021 Will altered, to their material disadvantage, the position of the Deceased’s sons.

Of particular relevance was the use of the DIY Will kit. The Court found that this was a sharp departure from the Deceased’s standard method of drawing his prior Wills, which had been prepared with the assistance of a solicitor. And while this was not of itself decisive, it was a clue that all was not as it should have been when the 2021 Will was drawn.

Key takeaways

Sorati v Sorati highlights that a homemade or DIY Will may still draw scrutiny from the Court when an application for probate is made, even if it has been executed properly.

It is understandable that the Courts will exercise greater scrutiny over a homemade or DIY Will because the Will could be seen to have been made by the Will maker without testamentary capacity, having not had proper knowledge of, or approved of, its contents, and/or being executed under duress by a family member, friend, or their associate.

Although a homemade or DIY Will may seem like an attractive and cost-effective option now, if the Will is found to be invalid, the consequences, including future legal costs to your Estate, could be significant. If the Will is found to be invalid and there is no Will at all, the intestacy laws will apply and could result in unintended family members or possibly an estranged/former spouse inheriting assets.

There are also the possible time delays and emotional distress for your executors and/or family members.

Sorati v Sorati should be a reminder of the importance of seeking professional legal advice when seeking to prepare an estate plan that properly protects your legacy while mitigating the burden on your family members or friends in carrying out your wishes.

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