Top 5 mistakes in home-made wills

Home-made wills vary from a few scribbles on a loose-leaf page to a nicely-printed formal document. I've seen wills written on the backs of envelopes and on yellow post-it notes. What all of these diverse wills have in common is that they are made without legal advice.

In Canada, we can make our own wills if we want to. Most provinces recognize hand-written wills as being valid, but even in the provinces that don't allow hand-written wills, anyone is allowed to create his or her own will using a kit or computer. Sometimes that works out just fine. Other times it does not. As someone who has worked in estate litigation for more than 30 years, I can attest that home-made wills might have saved a few bucks on the front end but often cost thousands in legal fees later on.

In this post, I want to point out some of the most common errors people make when preparing their own wills.

1. Accidentally creating a trust. Every word counts in a will, and wrong words can create situations you never intended to create. An example would be: "Give my house to my son, Roger, and when he is done with it, give it to his kids." In most cases, the testator intended to give Roger the house outright. They intend for him to use it or sell it or whatever he wants. The idea of giving it to his kids is what they think he will do with it on his death. However, by putting in the part about giving the house to the kids, they may have created a trust for the house, meaning that Roger will never own it. This means the executor of the estate will have to hold the house in trust for Roger's lifetime. And while he holds in trust, who pays for the property tax and the insurance? What does Roger pay for? What do the kids pay for? All of a sudden, things are a lot more complicated. 

2. Not including a residue clause. A residue clause is one that gives away "the rest of" the estate, after specific items have been gifted. For example, you might give away your motorcycle or your Royal Doulton collection, then divide the rest of the estate among your children. Unfortunately, a lot of home-made wills don't include a residue clause. People tend to list their major assets - their home, bank account, vehicle - and that's it. They believe that once they've listed the big stuff, they are covered. When I speak to people about this, they sometimes wave off my concern with "oh, there's not much left after that". But that's the point. There is SOMETHING left even if it's just the $20 in your wallet or the furniture in your attic. Legally, leaving off the residue clause leaves a partial intestacy, meaning that $20 in your wallet has to be divided among your family members according to the laws of intestacy (not according to your will). 

3. Improper witnessing. Failing to observe the rules of witnessing has invalidated many, many home-made wills. In provinces that allow handwritten (holographic) wills, the law usually does not require a witness for such wills. For every other will, whether you prepare it on your computer, use a will kit, or have someone else with nice writing write it out for you, you must have two witnesses. The witnesses must be in the room with you, see you sign it, and both of them sign while you watch. There are also problems with who can be a witness. A beneficiary of the estate cannot be a witness, nor can the spouse or partner of a beneficiary. (Having said that, you can sometimes save a will like this if the second witness was NOT a beneficiary and is available to give evidence of the signing of the will).

4. Unclear description of gifts: Something I find both endearing and frustrating is a testator who makes gifts such as "my favourite ring" or "the ring I bought myself for my 40th birthday". Nobody knows for sure which ring you're referring to. An example I saw recently was a professional painter who left a gift of "my paintings". It was not clear whether he was referring to the items he had painted himself or the many pieces of art he had collected over the years. It's never a good idea to have anything in a will that is unclear or can be read two ways.

5. Giving away things you don't own: This can happen when an individual does not fully understand legal concepts such as joint ownership. I have seen a number of home-made wills in which a person attempts to give away his or her half of something such as a house or bank account when there is a joint owner whose right of survivorship will dictate ownership. Recently I met with a client who wanted to give her house to her daughter, but land registry searches indicated that the mother didn't own the house. The mother acknowledged that she didn't own the house but since she lived in it, she called it "her house". Legally, there was nothing to give to her daughter. These situations, and others much like them, can cause a great deal of confusion and even disputes.