Home-made estate plan claims another victim

Home-made estate planning claims yet another victim. In this case, a son who believes he is entitled to keep a GIC to which his mother had added him as a joint owner is not likely to receive the GIC he says his mother wanted him to have. Here is his question, followed by my answer.

"My mother put my name on her GIC approximately 1 year prior to her death, saying that the GIC, which is about 25% of her estate, would be for my own use. This was an extra thank you for the time and energy put forth by me (and my wife) over the last 12 years. I was my mother's care giver. Both my brother and I are Executors. He lives in the other side of the country and has for over 35 years. Due to him being an Executor and living so far away, he hired a lawyer to act on his behalf. This lawyer says I have no rights to the jointly held GIC and must turn it in.  I do know there is a law with regard to this scenario, but is it in pure stone? I understand there would be some times when this might be necessary, but when my mother jointed them with me, she had the knowledge that they would become mine should anything happen to her. Obviously neither of us knew about this law or other steps could have been taken to ensure the outcome of her actual wishes."

I can't even tell you how common this is. All over the country, parents are adding their children to their accounts, investments and real estate. And as those parents pass away, the children are being disappointed and pitted against each other to fight over the assets.

And to think that five minutes with an estate lawyer could have prevented the whole thing. If only people realized that taking steps that affect your children's legal rights without talking to a lawyer is simply a bad idea. The kick of it is that the parents generally don't even know they've left a mess behind for their kids to fight over.

The law in Canada says that when an asset is jointly owned between a parent and child (or other inter-generational arrangement such as grandparent and grandchild) and the money originally belonged to the older person, on the death of that older person the asset goes back to the estate.

If you are the parent in a situation like this and you want your child to receive the joint asset on your death, simply adding the child as a joint owner isn't going to be enough. You must also leave written instructions that the joint asset is actually intended to go to that child. The written instructions should be made around the same time you made the asset joint.

The son who wrote me this note might contact the banker who took the mother's instructions to put the asset in joint names. If the banker happened to ask the mother about her intentions, and happened to record them, that would go a long way to establishing what the mother intended for this GIC. Most banks don't keep paper files these days, but they all have customer management software that allows for  notes to be kept. You just might luck out.

If  you are a parent made the asset joint some time ago, you can still salvage the situation by  making a will that confirms that you want the joint asset to go to that child for his or her sole use. The son who wrote to me should double-check his mother's will to see if she says anything about the GIC in her will.

Once you pass away, it's too late for the child to do anything about it. It doesn't matter what the child says about the parent's intentions, even in cases like this one where there is a perfectly reasonable explanation for the child to receive extra funds.

I really feel badly for the thousands of people who have put themselves and their children in this situation. An estate planning lawyer could have given you some advice on how to record your intentions regarding the joint asset, and if it was already in joint names, could have advised you on how to set up your will to carry out your intentions.

101-year-old woman battling for home over handwritten deed

I read the attached article from www.sbsun.com about 101-year-old Lois Risse, and all I could think was "what a mess". How sad that this woman has to undergo the stress of this legal battle and the surrounding circumstances, when it could easily have been prevented.

It appears that since Mrs. Risse's husband died 30 years ago, the people around her may well have been taking advantage of her. She has made mistakes herself as well. Click here to read the story. Shortly after her husband's death, she sold her home to a friend using a handwritten deed. There was a verbal agreement that the deed would not be recorded until Mrs. Risse passed away, and an assurance by the buyer, Mr. Neff, that Mrs. Risse could live in the home for as long as she wanted.

The story became more complicated, including a friend who moved in and kept Mrs. Risse isolated from her neighbours, persuaded Mrs. Risse to buy him a motorcycle and didn't leave until the sheriff's office forced him out. Then of course, there was the adding of Mr. Neff's name to Mrs. Risse's bank account shortly after her husband died. Eventually the court appointed a conservator for Mrs. Risse to protect her from the people in her life, and the conservator, not knowing about the sale deed, applied for a reverse mortgage for Mrs. Risse. At that point, Mr. Neff recorded the deed.

Now everyone is in court to sort out various legal issues. On my reading of the article, each step forward seems just to lead to more questions.

As I mentioned above, most of this heartache and financial loss could have been avoided. The following are some of the errors that led to this situation:

1.  Creation of a hand-written document with no legal advice. The house was Mrs. Risse's largest and most important asset, and now she has lost it. An asset of this importance is worth the cost of seeing a lawyer for an hour to make sure it's protected.
2.  Verbally agreeing to terms that vary a written agreement without documenting them in any way. Now it's one person's word against another, and one of those people is 101 years old.
3.  Not keeping a record of money supposedly paid under the agreement. Apparently neither Mrs. Risse nor Mr. Neff can produce receipts for payment, though he insists it has all been paid. Now Mrs. Risse's bank records are being examined by strangers to try to piece together what happened, and neighbours are pitted against each other with accusations of taking advantage of Mrs. Risse.
4.  Adding Mr. Neff's name to the bank account. I can't imagine what purpose that would serve for Mrs. Risse. Now it's almost impossible to figure out where money went and to verify Mrs. Risse's claims that her money was disappearing.

Unfortunately, many of the mistakes made here are made pretty often. People seem to think that insisting on legalities or formalities between friends or neighbours is insulting. This story is an example of what can happen even when you trust someone.

Yes, Virginia, you really do need a will or estate plan

The author of the attached article, Mary Anne Rees, talks about why many people need estate planning advice as opposed to do-it-yourself wills. She raises a very important point - that people believe their affairs are simple when they are not. I sometimes think that people are wilfully blind to the potential problems because they don't want to spend money on a lawyer, or because they suspect they are being tricked into believing simple things are complicated. Or perhaps they don't want to think about how awful it could really be for their families so they pretend everything is alright.

Click here to read Ms. Rees' article, which contains some common sense ideas about will kits as well as other estate planning matters.

In my opinion, will kit wills can be just fine, as long as they are used by the people for whom they are designed. Will kits are not meant to be used by people with blended families, or business owners, or those with insurance policies, rental properties or investments. If your estate contains only a bank account and you have an obviously good candidate to be your executor, you can probably use a will kit.

If you're using a will kit because you're too cheap to pay for legal advice even though you have assets or family members that could create issues, so be it, but your family will pay for this short-sightedness after you pass away.

The attached photo of Ms. Rees is credited to Jonathan Marrs and was found at www.bizjournals.com.

The importance of leaving a will

In this article from www.estatedebate.com, Toronto lawyer Ian Hull says that many  people don't have wills either because they are making excuses why they haven't gotten around to it, or they are making false assumptions that they don't need one. Which are you? Click here to read the article.

Using a will kit: do you need the Affidavit of Witness?

If you have used a will kit, or are thinking about using one, please read this reader's question and my answer. It's very easy to make a mistake when preparing your own will, and ignoring instructions in the will kit isn't going to help.

"My husband and I recently did our wills through an online will kit. Do you think it's a necessary step for the witnesses to sign an Affidavit of a Witness to a Will?"

Yes, I do think it's a necessary step. Why would you choose to skip a step that the kit tells you to complete?

Assuming that you have made your will correctly and have had it witnessed correctly (two very big leaps of faith for online will kits, but that's a story for another day), then your will is valid without the Affidavit of Witness being attached. However, your will can't be probated without the Affidavit, so leaving off the Affidavit is a mistake.

When a will is sent to the court for probate, the court needs proof that the will was properly signed and witnessed. By "properly" I'm referring not just to the fact that each page was initialled and the last one was signed, but also to issues such as the person signing being of the age of majority and being of sound mind. This proof is provided by the Affidavit of Witness.

If you don't have it signed now, once you pass away your executor will have to find one of the witnesses and have it signed. This won't necessarily be easy, as witnesses may move away or lose touch with you. Or they may pass away. Why cause this kind of problem when you can prevent it by having the Affidavit signed now?

It makes me nervous that you are questioning parts of the instructions provided to you for setting up a proper will. You may be skipping over information or steps that are vitally important to a valid document. Please do not make the mistake of assuming that you don't need the Affidavit because your will won't need to be probated. You can't know that ahead of time.

My experience has been that some people mis-use will kits. They don't want to bother getting advice or paying a lawyer so they wilfully ignore potential issues and problems. Those are the people whose families pay for it later. You can produce a valid will using a will kit, but only if you have followed all of the instructions provided by the kit, including the advice about getting the Affidavit signed.

Kinkade estate fight will be hard on the family

A general rule of wills is that the most recent valid will revokes any wills made earlier. But what happens when the validity of the more recent will is in question? This can make a huge impact if you named different beneficiaries in the recent will than you did in your earlier will. In a case like this, you can certainly expect an estate fight.

This is what has happened in the estate of Thomas Kinkade, an artist known as "the painter of light". He left not one, but three, wills. The earliest one named his former wife, while the second and third named his girlfriend. There is some controversy about whether or not the second and third wills (which were home-made and had some problems) are valid. This pits the former wife against the current girlfriend in court.

A large part of the problem in this case is that there is some evidence that Mr. Kinkade was an alcoholic and that such addiction affected his ability to make the second and third wills. This is what the court will have to determine. I can just imagine the circus this will become, once witnesses begin to testify.

It's so unfortunate that Mr. Kinkade didn't see a lawyer to have his will changed properly. All of this litigation could have been avoided. Now not only will his estate be publicly exposed and picked apart, so will his personal life. His girlfriend and his former wife will be involved in this costly, unhappy mess for a long time to come.

A sad adjunct to estate litigation is the pain, humiliation and loss of privacy for the family members left behind. It's worth it to get professional advice to protect your own family from this kind of trouble.

Click here to read more about this story from American lawyer Kyle Krull.

Outsmarted by your own estate plan?

A woman recently told me her story, in which her husband recently passed away. He was relatively young and his death was unexpected. What was also unexpected was his will, which left everything to their teenaged son.

This couple had talked about estate planning, and had confirmed their intention to leave their estates to each other. They wanted to leave everything they had to their son when both of them passed away. To help bring about that outcome, the husband and wife owned their major assets jointly, and the husband named her as the beneficiary on his RRSP and life insurance policy.

Then he made a will leaving the estate to his son. It was a home-made will, prepared without legal advice.

I've seen this particular situation many times over the years. The thinking behind it is that if "everything" is already jointly owned or names a beneficiary, there is no need to name the spouse in the will. The husband was outsmarted by his own will, as it by-passed the arrangement he really wanted (leaving it to his wife) and went straight to his second choice arrangement (leaving it to his son).

The majority of the estate assets passed to the wife on the husband's death, as they had planned.

So why is the will a problem? Simply, because not every asset is covered by the joint property and designation of beneficiaries. If you're one of the people who has set things up this way with your spouse and you can't think of any assets that you might have that aren't covered, this doesn't mean there are no such assets. It just means that you aren't aware of them. In the case of the woman I recently spoke to, the husband outsmarted himself by setting up a will that would only have been useful if his wife had died before he did. He thought that was all he needed.

In this case, the husband received a significant tax refund after he died. The refund was obviously in his name only. The wife couldn't deposit it into their joint bank account because the will says that the husband's assets are to go to the son. The bank doesn't want her to open an executor's account based on a home-made will that hasn't been probated. It can't be deposited into the son's account because it isn't made out to him. So far the fight between the bank and the wife has been going on for three months and it's not over yet.

The husband in this case clearly wanted to deal with estate planning. He thought he had taken care of it. He and his wife took the steps they were aware of. Unfortunately those steps weren't quite enough and his wife is paying the price in terms of stress and upset. I really hate seeing this kind of thing, when an hour with a wills lawyer would have alerted this couple to the hole in their plan.

The lesson to be learned? Your will should say what you want, clearly and simply. If you want your spouse to have everything on your death, that's what it should say.

Can a will be written on any surface?

We all know that a will must be written down, and most of us simply assume that means on regular sheets of paper. I personally have seen a will written on a series of small post-it notes, which was held by the court to be a valid will. On an earlier entry in this blog I told you about a woman who had written her will on a board. The attached article from http://www.allaboutestates.ca/ gives some pretty interesting examples of the surfaces used when a testator was in a pinch. Click here to read it.

Free wills

If you are wondering whether you're going to make your own will or hire a lawyer to help you, you must read this. It's a blog post by BC lawyer Stan Rule. He gives some food for thought to help you make up your mind. Click here to read it.

What happens if a beneficiary acts as a witness?

During my seminar on Saturday, the attendees and I had a great discussion about the logistics of wills. Whether wills lawyers like it or not, plenty of people out there are making their own wills, and they want to know how to do it without making mistakes. I frequently get questions about witnessing, and this seminar was no exception.

The general rule for witnessing is that a witness should not be anyone who benefits under the will either directly or indirectly.

A person who is named in the will as a beneficiary should not act as a witness. Neither should the beneficiary's spouse (married or common law) be a witness. If they do act as a witness, the will itself is still valid, but the gift that would have gone to the beneficiary is invalid. In other words, the beneficiary isn't going to get what the will says he or she will get.

This will make things more complicated. The gift that would otherwise have gone to the beneficiary will be divided up according to local intestacy rules.

If you are making a will at home and you don't have witnesses, try asking a neighbour to come in and be a witness. The neighbour doesn't have to read the document; they just have to know that you're making a will. And don't forget to get the affidavit of witness to will done right away, before you lose track of the witness.

I guess I should have seen this coming

I know that mobile devices these days can help a person do everything from find a pizza restaurant to get a ride home after drinking too much. Mostly I don't have an opinion on these apps and am ok with people using whatever apps they like. But the latest one that I've heard about sets my lawyer alarm bells ringing. That would be the app for writing your Will on your phone. Yes, you heard me right. Click here to see the ad for the app.

To cover its butt, the manufacturer says that if you require "a more complex will" you should see a lawyer. The problem with this is that people don't know they require a more complex will. That's why they should see a lawyer to start with, to find out what is waiting to jump out at them. This app assumes that without legal advice, you know enough about the legalities surrounding your blended family, outstanding child support payments, illegitimate child, debts, shareholders agreement, life insurance, pension, RRSP designation, tax issues, business succession, family fights, choice of executor, handicapped child, challenges to your estate, etc etc to know that you don't need advice.

Preparing a will this way assumes that nothing more than filling in a few blanks is needed to make a strong will. If there is anyone out there naive enough to believe that, google "estate fight".

Laws across Canada require that your Will be written down, signed and witnessed. On paper, preferably. I admit that I haven't watched their instructional video, but I don't see anything on the app use page about printing the will, or signing it, or getting appropriate witnesses.

I guess I'll have to wait and see how this works out for people. 

Nobel Prizes Were A Planned Gift

Did you know that the world-famous Nobel Prizes were the result of a gift left in a Will? For some great information about Alfred Nobel, his Will and the Nobel Prize, click the link below.

Nobel Prizes Were A Planned Gift

The worst ways to change your Will

Plans change over time. Over the course of years, people come into your life or disappear from it, your wealth changes, and your wishes for the distribution of your estate after you pass away are shaped by your experiences and your relationships. No wonder so many people want to make changes to their Wills. Unfortunately, not everyone who makes a change to a Will does so in a way that is going to actually bring about the desired change.

Many people want to change their Wills themselves without consulting a lawyer because they feel the change is simple, or they don't want to pay legal fees, or both. This doesn't always work out well. There are rarely explanations available for the speed and secrecy of home-made changes, which cause family members to become suspicious. Here are some of the wrong ways to go about changing your Will:

1.  Scribbling over or crossing out the parts you no longer want - Unfortunately, it may be impossible to tell whether it was actually you who crossed it out, or whether it was someone else who didn't like the contents of your Will. Remember, you won't be around to explain yourself when your Will is needed. Even if you initial the crossing out, this is likely not going to stand up to examination if the Will itself had been signed in front of witnesses who didn't also initial the crossing out. Also, there is the possibility that the words you cross out may affect the meaning of other words around it so that you change more than you meant to. Finally, there is the question of whether you had mental capacity to make changes at the time you did the crossing out.

2.  Writing notes in the margins - Similar problems arise with this as with crossing out, in terms of witnessing and mental capacity. Unfortunately, the inclusion of notes can be even worse than crossing out. Notes tend to be very cryptic to those reading them. It's rare that these notes can be fully understood by others due to abbreviations, lack of punctuation and lack of precision (such as identifying which policy, item or fund you are talking about).

3.  Inserting a new page - There will be questions about when the new page was inserted and who inserted it. It's unlikely to stand up as legally valid, largely because of witnessing issues. The issue of capacity arises again, and if the new page is favourable to a certain person, it may appear that the person influenced you to make the change.

4.  Destroying the Will - While this would certainly be legally valid, assuming you had the mental capacity to intend to revoke your Will, it has the unfortunate effect of leaving you with no Will at all. If you are going to destroy your Will, wait until a new one has been signed.

5.  Telling the lawyer you want changes but then never getting around to signing the new Will - I've been asked this question dozens of times. Clients believe that if they see the lawyer and talk about new wishes, this "means something" and will act as a new Will. It won't. You must actually sign the new Will to make it effective. A few times, clients ask whether they can just sign the page with the notes I've taken during the meeting. That won't work either.

6.  Telling everyone in your family that you're making a new Will but then not doing so - This is probably the worst of all. All you've done is create confusion after your death over whether your family has the right Will, delays while they search for the new one, and possibly suspicion over who "lost" the new Will. Talking about your intentions doesn't turn them into a legally enforceable Will.

The better approach is to have a new Will properly made to incorporate the changes you want. If the change really is small, you could keep the Will but have a brief Codicil made. A Codicil simply amends an existing valid Will. If the changes are to do with personal property such as household goods, jewelry, artwork or the contents of a workshop, perhaps a Memorandum of Personal Effects would be a good idea.

Woman's will written on a piece of wood

We're used to seeing Wills written on paper, of course, but this story is about a woman who used the material she had at hand - a piece of wood. Any guesses on whether or not the court allowed it as a valid Will? Read this story from the Newark Advocate to find out. The photo attached by Michael Lehmkuhle of the Advocate, is of Bill Fisher of the probate court that dealt with the issue after the woman who wrote the Will died.

Holograph Wills - Testators Beware!

Have you ever heard that story about the farmer who was trapped under his tractor and wrote his Will on the fender? It's a true story and it's discussed in this article. The article is from Ontario, but the law as described is the same in Alberta. Not all provinces allow holograph (hand-written) Wills, but this excellent article from Advocacy Centre for the Elderly does a good job of summarizing the law for those areas that do. Click here to read it.

Can my Will do anything to protect my child who has an addiction?

I sometimes meet families where one of the children has an addiction to alcohol, drugs or gambling. The parents want to treat all of the children equally in the Will, but want to know whether there is anything they can and should do differently for a child with an addiction. Yes, there are things that the parents can do.

The basic goal is to ensure that the addicted child's share of the estate is maximized in a way that it gives the child the most benefit. The parents want to ensure first of all that inheriting money doesn't make the addiction worse, and secondly that the inheritance isn't wasted either on the addiction itself or on opportunists who take advantage of the addicted person.

A trust for the addicted child is often a good idea. In the parents' Wills, the share that goes to the addicted child is held by a trustee. The terms of the parents' Wills dictate how long the money is held, who holds it, how often the child gets payments, and the amount of those payments. The parents can choose to have a regular monthly income flow to the child, or may choose to have payments made only on an as-needed basis. Though this may sound complicated, it really isn't difficult for an experienced lawyer to draft a trust that will meet the parents' requirements. Each family and each situation is a bit different, so the trusts are individually drafted to include relevant details.

Something that I believe doesn't get enough thought in these cases is the naming of the trustee. Most of the time when I ask parents who will act as the trustee of the addicted child's trust, they automatically reply that one of their other children will take on the job. But let's think about that for a moment. Think about what it would be like to be a child who must always ask a sibling for money. And think about what it must be like to be the sibling who is in charge of the funds and who has to assume a managerial role over a troubled sibling. That can't be pleasant for either of them and it usually changes the relationship between the children in a negative way.

Another issue that arises is that of "what if he gets better?" This one is really tough for parents. After all, the point of the trust is to protect the addicted child, not to punish him or her. The parents often feel that it would be unfair to the child to keep a lock on his or her inheritance even if the child cleans up his or her act and gets free of the addiction. To deal with this, you might consider building flexibility and discretion right into the trust so that the trustee has the ability to collapse the trust and pay out all of the funds if it seems appropriate to do so. Keep in mind though, if the child should have a relapse, the trustee won't get the money back.

The parents also have the option of including a brief statement in the Will to the effect that the trust is in place because they love the addicted child and want to provide protection. This might offset any perception that the trust is "punishment" for bad behaviour.

Depending on the family's circumstances and the affects of the addiction, the parents might also consider giving the addicted child a part of his or her inheritance while the parents are alive, perhaps in the form of a place to live. If the addicted child has children of his or her own, you might consider leaving the child's inheritance to them instead.

Your estate-planning lawyer can help you talk through the possibilities to come up with something that will help deal with a difficult situation.

Using software to create Wills

This article from the New York Times is written by a person who tried several different Will-making packages and then ran them past an estate-planning lawyer for comments. Click here to read it. I'm not particularly in favour of people making their own Wills unless their affairs are completely simple and straightforward, but my opinion doesn't stop them! Unfortunately people seem to be the worst judge of whether their own affairs are simple or not. In my opinion, you should not be making your own Will if you have minor children, if you have a handicapped child of any age, if you own more real estate than just your principal residence, if you have assets or pensions in another country, if you've loaned money to your children, if you own any assets jointly with anyone other than your spouse, if you want to leave specific assets to specific people, or if you're doing anything other than leaving your estate equally among your children. And even then, I'd prefer that DIY testators reviewed their documents with their lawyers and possibly their accountants. See what you think of this writer's experience in this article.

The attached illustration by Robert Neubecker is also from the New York Times article.

The Case Against Do It Yourself Wills

This article will be a bit of an eye opener for many of you. The author relates some DYI horror stories, and they ring true for me after my years of practice. Click here to read this article from Forbes.com.

What do you mean, I can't do that?

A Will is used to instruct your executor on how to deal with your assets and liabilities after you have passed away. There are some legal obligations that you must meet, such as looking after a spouse, minor children and handicapped children. Once they are taken care of, there are plenty of new options, including giving to charities, giving to friends, and looking after pets.

For most people, deciding on what they can do in the Will is not really a problem. However, probems can arise if a testator wants to rule from the grave, or to use his or her Will as a personal soapbox. Testators can think of infinite ways to try to control the behaviour of those left behind, but not all of these ideas are legal, logical or for that matter, logistically possible.

Here are some of the things you cannot legally do in your Will:

1. You can't control what happens to something after you give it away. For example, you can't leave money to your son and tell him to spend it on a house. Once he owns it, he can spend it on whatever he wants.

2. You can't give away joint property that you own with someone else, because the joint owner will have a right of survivorship that overrides the Will.

3. You can't set up a trust in which the principal lasts forever and only the income is paid out (unless you're leaving it to a registered charity).

4. You can't impose a condition on a gift that is impossible for the recipient to do or control.

5. You can't leave a gift that is so vague that nobody really knows for sure who you are leaving it to, or how much the gift is supposed to be.

6. You can't leave someone a gift on a condition that would require the recipient to commit a crime to meet the condition.

7. You can't leave a gift that is conditional on someone leaving their spouse, or that is conditional on them not marrying (so if you don't like your kids' significant others, you can't do anything about it in your Will).

8. You can't leave someone a gift on a condition that would require them to discriminate against someone on the basis of race, creed or nationality to meet the condition.

I've seen other clauses in Wills that may or may not be legally enforceable, but are definitely not realistic. For example, I recently saw a Will in which a person would only receive the gift if he or she stopped smoking, and if he/she resumed smoking within two years, the gift would have to be repaid. How would an executor ever deal with that? How long does the person have to quit smoking before he or she is considered to have quit? And if he or she smokes only one cigarette within two years, does that mean he or she has resumed smoking? What if nobody knows for sure but only suspects? If the money is paid out, how is the executor supposed to get it back? Is it meant to be held in trust for two years? And even if it were to be paid back, what happens to it?

If you want to do something unusual in your Will, it's a good idea to do some research, or better still ask an estate-planning lawyer, to be sure that it's something legally enforceable and realistically possible.

The perils of home-made Wills

The unfortunate thing about making a mistake in a Will is that the mistake usually isn't discovered until the testator has died and there is no chance to correct the error. The family and friends left behind are the ones trying to figure out what to do with a Will that causes the problem. Often it ends up being decided by a judge.

I recently saw a Will of a deceased person who left a large sum of money to a family member on the condition that the family member stop smoking. The Will went on to say that if the family member started smoking again within two years, the money had to be repaid to the estate. This is completely unenforceable. And even if it were enforceable, what happens to the money if it is repaid to the estate?

I saw another Will in which the testator divided up her entire estate among family members. After that, she said that she wanted to give her pets to a certain person, along with a yearly amount of money to cover the expenses for the pets. But if she has already given away her estate, where is the yearly money coming from?

Another Will left each of the testator's six children an individual piece of real estate. Unfortunately, the testator didn't think about taxes. When real estate is transferred to a beneficiary, it is subject to capital gains tax to be paid by the estate, unless it is the testator's principal residence. This person had six parcels of land and only one could be the principal residence. There was no cash in the estate to pay taxes, so at least one of the properties would have to be sold.

What all of these cases - and many, many more - have in common is that the wishes of the testator are simply not going to be carried out if the Will is worded in the way the testator directs. Yes, there is a Will in each case, and on the face of it, each is a valid Will, but the documents are ineffective.

Two of the above-mentioned Wills were home-made. I caught the other (the one with the pets) when it crossed my desk. I believe that if your affairs are completely straightforward and simple, you may be able to make your own Will, though I never think it's a very good idea. However, these examples show that even people who believe things to be straightforward (six children, six properties, sounds simple, right?) can benefit greatly from estate-planning advice.

There is very little value in putting together a Will yourself if all you're doing is creating problems for your spouse or children or executor. Wills like those I've mentioned here usually end up being interpreted by a judge, which means that instead of paying to get a Will made, your estate is paying a lawyer to make a court application. The Will would have been a heck of a lot cheaper.