Real Time Web Analytics

Tuesday, June 4, 2019

Are Canadian will kits or online wills worth it?

I'm attaching a link to an article on a site called Maple Money, a Canadian finances site. It's a discussion of will kits (the paper kind) and online will- preparation software. Click here to read it. I thought I'd post it here for those of you who are considering making your own wills.

As a wills lawyer, obviously I'm not thrilled at the idea that people make their own wills. And no, it's not because I make less money if you do your own will. In fact, I and other lawyers make a lot more money if you DO make your own wills because we get paid by the hour after you pass away to fix the mistakes you make and don't know about.

So please put your cynicism aside when I say I think paying a lawyer to make your will is a good idea. What do I add that a will kit doesn't? Advice. Experience. Do you know which of your assets is taxable? Do you know who must pay the tax if you leave your cabin to one of your kids? Do you know how to write a trust for a disabled child or a spendthrift or a minor? Do you know what might happen if you leave out one of your kids? Do you know the rules regarding common law spouses in your province? These are some examples. For some of you, there are even more issues.

Having said all that, I can see value to using a will kit (either online or paper) if you are doing something extremely simple, such as leaving everything to your spouse. At least you'll have named an executor. But there are very few people whose affairs are as simple as that. If you have a blended family, joint property with your kids, minor kids, a business, a disabled family member, or a common law spouse, you should have legal advice.

Okay, that's my view on the topic. I know full well that some of you either don't have access to a lawyer, can't afford a lawyer, or simply want to do the task yourself. I hope the attached article is helpful. Keep in mind that the Maple Money site does endorse products and services for a fee.

9 comments:

  1. IMO 'Will Kit's' are better than nothing as there is at least some direction. Many 'wills' are simple and straightforward, but many are not. Having said that however , the problem is not necessarily the simple and straightforward 'will', but often the people involved with the 'will' , executors, beneficiaries and others (lawyers and such) who play a part in the resolution and settlement of the 'will'.
    I do agree that life has gotten much more complicated and most people need all the help they can get. It can get very messy even with a well drawn 'will' not to mention a holographic 'will' such as we have recently seen, Aretha Franklin's.

    ReplyDelete
    Replies
    1. Good point about the people involved in the will. In lots of families there is someone whose initial reaction is rage or jealousy. They are going to take a run at whatever will exists. Hopefully the will and surrounding planning are strong enough to withstand the bitter beneficiary.

      Lynne

      Delete
    2. What a lay person considers 'simple', is not necessarily reality from a legal perspective.

      I was recently involved with a family member's estate involving a holograph will which the remaining family (and the testator - apparently) all considered to be straightforward and 'simple'.

      After review by several legal and financial professionals, all stated it is one of the most complex wills they had seen, not because of what it said, but because of what it didn't say.

      That will not only required court direction, it also became subject to litigation. The court eventually settled the estate much differently than any of the remaining family initially considered.

      If my aunt had utilized a Will Kit or online service, the outcome likely would not have been any different, for numerous reasons. She clearly could have benefited from proper estate legal direction which in hindsight, would have been 'cheap' compared to the cost to settle matters after death.

      A person does not know what they don't know.
      Unless a testator has no children and is leaving 100% of their estate to their spouse, their estate and will document may not be as 'simple' or as straightforward as they may think it should be.

      Delete
    3. Excellent comment. In almost every interview I have with new clients, they say things like "I didn't know that" or "I had no idea" when I point out potential issues to them. Because they haven't been exposed to estate problems, they just don't realize what's out there.

      I always wonder why a person with absolutely no training whatsoever thinks that something they take 10 minutes to scribble down is as legally solid as something I would write after 34 years of practice. I wouldn't presume to know as much about their jobs as they presume to know about mine, especially when what is at stake is my life savings and my family harmony.

      Lynne

      Delete
  2. While I generally agree with your comments, it's worth pointing out that lawyers are far from infallible.

    When my father-in-law died his will specified that certain assets be bequeathed to a woman no one had heard of. Turned out it was a cut-and-paste job and the legal assistant had failed to notice the name left over from the last will he drafted. Furthermore, when my wife and I had this same lawyer draft our wills, we answered his extensive questionnaire, only to find our wishes were not correctly written up in the first draft. My knowing the difference between "jointly" and "jointly and severally" in a POA was also crucial to avoiding potential problems in the future.

    For all but the simplest wills, a lawyer is your best bet, but, as always, E&OE.

    ReplyDelete
    Replies
    1. You are correct that lawyers are not infallible. I'd be an idiot to think otherwise!

      Something else that impacts consumers of legal services is that too many lawyers "dabble" in doing wills. They have no real experience in it but view it as filling in blanks. They are, IMO, some of the most dangerous lawyers on earth. They prepare documents that are at best inadequate and at worst, invitations to litigation. It's not always easy for members of the public to know which lawyers to consult, and lawyers who are irresponsible enough to do work they don't really understand just make it worse.

      Rant over :)
      Lynne

      Delete
  3. My 2 cents.

    What appears simple to some, might appear complex to others. We have not seen your Aunt's will, we don't know the details. We are left wondering what was in the will that needed court direction. There are many estates that needed court direction but the lawyers 'somehow' worked it out, but, not always in the best interest of one or both parties. It appears that your Aunt's will was not properly structured. Who is to blame? Is it your Aunt (testator), the lawyer who drew up the will, or both? In your Aunt's case it is difficult to know whether a 'will kit' would have helped her or not. Not all will kits are created equal but one properly put together might have been better than the will the lawyer drew up. We don't know the full story, and that is always the problem. IMHO.

    I am the Executor of a very simple Estate matter that has gone on for 15 years. How is that possible? My direction, my instructions (all legal) are being ignored. How is that possible? My 'current' lawyer is in agreement that I have conducted myself accordingly. The 'will' is simple and quite clear. It has not been contested. It involves a modest property and several GIC's. TBC.
    Webeye

    ReplyDelete
  4. @ Webeye, since you questioned if the lawyer who drew-up the will is to blame, I found your question perplexing as I had stated my aunt left a holograph will which would signify her will was not prepared by a lawyer.

    Although my aunt had a will kit available to compare as an example when preparing her holograph will, she apparently chose to ignore various portions as though they were not important or relevant.

    A few examples: 1) She did not name an executor 2) She utilized non-standard wording inconsistently throughout the short document which raised question if she was referring to different items or the same 3) She named 2 siblings as equal beneficiaries but did not indicate what was to happen with either beneficiary's portion if either or both should predecease her 4) Although she had ample time to update her will after one named beneficiary died ~ 5 years before her, she did not do so thereby raising the question, what did she intend to occur with that beneficiary's portion. Since my uncle died intestate without partner or issue, then 2 of 4 other siblings not named in my aunt's (their sister) will, launched legal action to obtain at least a portion of the estate which was to go to their brother. There is more to this but ...

    If a testator chooses to ignore portions of a kit will, that creates an incomplete will and in the least creates uncertainty for the executor or in my aunt's situation, the appointed trust company administrator. Since these types of wills are usually created in private, no one is usually aware of deficiencies and the problems they are likely to create until after the testator's death. In some situations, no will (intestate) may provide a better outcome for everyone involved.

    In hiring a lawyer to draft a will, the lawyer will generally force the testator to make decisions one way or another which will be documented otherwise, the will the testator requested, will not be prepared.

    You repeatedly claim your estate as simple. While I do not know details, apparently, something about it is not that simple otherwise it should not take 15+ years, multiple estate lawyers and still no end in sight to when finalization is expected (ie: TBC).

    Since a beneficiary is apparently causing or caused an issue important enough to prevent you from completing the estate, then perhaps as executor, you need to specify a deadline in which you demand compliance or your issue to be addressed otherwise, the matter will be sent to the court to review and issue a ruling one way or another. If the deadline is communicated through the estate lawyer, I expect the beneficiary will be more likely to comply with your demand.

    ReplyDelete
  5. @ Mark. Yes, you are correct. Your Aunts's will was not drafted by a lawyer. As you have stated, it was a holograph will. You have good reason to be perplexed by my response.

    One benefit however is that you have responded with more detail. Thank you for that as we become even more aware of the pitfalls in poorly drafted wills, holograph wills, or no wills at all. Considering the outcome with your Aunts Holograph Will, perhaps it might have been better had she done nothing at all.

    As to my Estate matter. You are right in stating that you do not know the details. A mole hill has become a mountain. It is as simple as I have stated. Why would the other side keep this Estate matter going for 15 years at great cost? If an Executor has not conducted himself/herself accordingly, then simply take the Executor to Court. That has not happened in my case. Unfortunately, at this time I cannot add any more, as this matter is still in play. TBC.

    Webeye

    ReplyDelete

You might also like

Related Posts with Thumbnails