An extended version of this article originally appeared in the January/February 2019 edition of Fifty-Five Plus Magazine.
Nelligan O’Brien Payne gratefully acknowledges the contribution of Rebekah Schultz, Student-at-Law, in writing this blog post.
A stroll to your nearest office supply store, or a five-second Google search will generate numerous “do-it-yourself” Will Kits promising huge savings on legal fees. Many people believe these Will Kits are a cheap and hassle-free way to protect their assets and provide for their family in the future.
However, failing to give adequate time and thought to this important planning document can lead to numerous legal problems after death.
What is a Will Kit?
A Will Kit guides you through the process of creating a Last Will and Testament. In store, it can be purchased in paper format, CD-ROM format, or a combination of both. Many variations can also be downloaded from the Internet and completed through online software. A Will Kit typically includes a “fill in the blanks” standard form Will that has you click boxes or complete blanks regarding your financial circumstances and last wishes.
While use of a Will Kit may be better than having no Will at all, especially if you have a common-law spouse, they can be problematic for a whole host of reasons, some of which are discussed below.
Reason 1: The Law is Constantly Evolving
In addition to potential legislative amendments by the Government, the Will Kits are unlikely to be on the cutting edge of emerging issues in estate planning, such as how to deal with your digital assets after death.
Reason 2: Exclusion of Important Clauses
Standard form Wills may also miss important clauses, such as a lack of surviving descendants’ clause, also called an “airplane clause”. This clause sets up a backup plan of how you want your estate distributed in the event your first set of wishes fail; that is, if everyone passes away together.
Reason 3: The Lack of Legal Advice
What’s ultimately missing from a standard “do it yourself” Will Kit is sound legal advice. Even with relatively straightforward estates, a good planning session will involve asset planning.
A lawyer will give you guidance on what tasks are required by your estate trustee, what to consider when deciding who to appoint, and the impact family dynamics play in this decision.
Reason 4: Enforceability of “Will Kit” Wills
Perhaps the biggest issue with Will Kits is their validity.
Some courts have found that “handwritten portions” on the Will Kits can be admitted as a valid expression of wishes, while any typed words on the form are inadmissible and will not form part of the testator’s last wishes.
Moreover, the validity of such Wills will need to be determined at a court hearing, upon a review of substantial evidence. This causes delays and far outweighs the cost of seeing a lawyer in the first place.
Reason 5: Exposure to Litigation
In addition to a court appearance to determine the validity of the Will on the basis of formalities, the lack of a lawyer’s presence can make a “Will Kit” Will more vulnerable to a successful Will challenge on the basis of undue influence or lack of testamentary capacity.
For a Will to be valid, a testator must know and approve of the contents of their Will, which often touches on the issue of capacity. A beneficiary can prove a Will is invalid if the testator did not know or approve of the contents of their Will or if suspicious circumstances occurred when the Will was being signed.
It’s not uncommon for a lawyer’s notes surrounding the execution of a Will to become critical evidence in a Will challenge, and the absence of this kind of evidence with a standard form Will may make it more difficult to uphold the Will’s validity.
Therefore, while a Will Kit saves money upfront, it does not replace sound legal advice, and may result in lengthy and costly litigation for your loved ones and your estate.
Any standardized form or program ultimately cannot replace the expertise of a lawyer who does estate planning day-in and day-out for a living. The old adage holds true: you get what you pay for.
If you would have questions about estate planning, contact our Estates Law Group.