Do-It-Yourself Wills: What is the real cost?!
You wouldn’t use a “How To” kit to put a cast on your broken arm, but surprisingly, thousands of Canadians use $30.00 kits to prepare what may be the most important legal document they will sign in their lifetimes.
In spite of what the sellers of will kits would have you believe, preparation of even the most simple will is fraught with pitfalls which can be easily overlooked in the absence of proper legal advice and guidance.
Technical Legal Requirements
Most will kits do a good job of clearly explaining the fundamental technical legal requirements for a valid will such as the need for two witnesses to sign the will in the presence of each other and the person making the will (the “Testator”). They also usually explain who may not legally act as a witness (for example a beneficiary under the will or the spouse of a beneficiary).
However, few people are aware (and many will kits don’t tell you) that if the will is to be probated, it will be necessary to provide the court with an affidavit (a sworn statement signed in the presence of a commissioner for taking oaths or a notary public) of one of the witnesses confirming that he or she witnessed the signing of the will and that it was signed by the Testator in the presence of both witnesses. It is not too difficult to imagine the problems that can be encountered in trying to track down someone who acted as witness to a will years previously, particularly if the signature is indecipherable. If the witness is deceased or cannot be found for any other reason, the cost in lawyer’s fees of establishing the validity of the will to the court can be significant.
By contrast, when a will is prepared by a lawyer it is standard practice for one of the witnesses (often the lawyer or a legal assistant) to sign the required affidavit immediately after the will is signed. The affidavit is then attached to the original will, thereby solving the problem.
Substantive Matters & Interpretation
Stating what you want to state clearly is sometimes trickier than it seems. For example, most wills prepared using will kits contain little or no planning for the contingency of a beneficiary predeceasing the Testator. Unfortunately there is no guarantee that all of the beneficiaries named in a will are going to outlive the Testator. What happens, for example, if a Testator leaves a valuable painting to his or her brother and the brother dies before the Testator? When preparing the will, the Testator is free to specify an alternative beneficiary for the painting, but often people do not think that far ahead. If no alternative is stated in the will and if a contrary intention does not appear, the painting will end up with the sister-in-law and children of the deceased brother. While this may prove a fair and desirable result in some circumstances, obviously that will not always be the case.
It is beyond the capacity of most will kits to assist the Testator in establishing a trust under the will. Yet most parents with minor children shudder at the prospect of their children coming into control of a substantial amount of money when they reach the age of majority (which is 18 years in Ontario). This is exactly what will happen if the money is left to children without using the vehicle of a trust. It is customary for a lawyer preparing a will to provide for a trust for the children. The trust allows for the trustee to make payments of income and capital to the child’s guardian while the child is a minor and to delay the distribution of the estate to the child until he or she reaches an age at which the parent feels maturity will have set in. Often there will also be tax and other legal implications which must be taken into account.
These are just a few examples of what can happen when a legal document is prepared without the guidance of a lawyer. Before buying a will kit, you should remember the old saying: “A lawyer who acts for himself has a fool for a client!” The principle applies equally to a non-lawyer who acts for himself.
Our firm provides a full range of estate planning and administration services. For more information please call Stanley Landau or Howard Steinberg.Share