It’s Buyer Beware when trying to make your own Will!
Full Disclosure: I’m a Toronto lawyer. I’m also the founder / president of Dynamic Legal Forms Ltd., which sells the most do-it-yourself Wills in Canada through our proprietary Will-O-Matic system. The Will-O-Matic is also available in Australia and the UK. Now, I’m not here to tell you about the Will-O-Matic system and what makes it so great. No, I’m here to tell you what’s wrong with other do-it-yourself Will Kits. These Will kits are becoming quite popular these days. You can find them in Staples or Amazon.ca, online (just do a Google Search), and even on Group buying websites like Groupon. But are they any good? Well, the truth is: not necessarily…
Personally, I find it shocking that those without sufficient knowledge – including lawyers and non-lawyers who prepare Wills for a living – are offering Will writing products or services. These kits may be doing more harm than good. Case in point, there are lots of ways in which these “do it yourself” Will kits can be invalid – even if you think they are valid! This means that, if they are invalid, when you die, there may be a court action to determine how your assets should be distributed – and this may not be in accordance with your wishes or in the most tax-advantageous manner. Some of these ways are discussed in greater detail at the end of this post…
So let’s get into some of the deficiencies I see with many Will kits in the marketplace, shall we?
There are no warnings as to who should be using their product. But do-it-yourself Will Kits should generally NOT be used by those who lack mental capacity (e.g. they do not understand the nature and effect of making a Will, etc.), are being unduly pressured by others, who have complex estates, who have international property, who have blended families, who believe there may be infighting amongst loved ones when you die, etc. In these circumstances, you should not be using a do-it-yourself Will kit because the Will can be challenged on these grounds. But it’s rare to see these types of warnings on websites and Will Kits! Why not? Because I’m sure the business don’t want to scare you away, that’s why!
When you’re filling out the Will (either manually or through Microsoft word or even online), some options are too rigid, too simplistic, or outright missing (e.g. specific types of gifts that can be made, compensation for the executor and trustee, gifts to the executor and trustee, debt forgiveness, alternative dispute resolution, additional clauses, definitions, etc.). How can you truly express your wishes if your options are limited? You’re basically leaving it up to the creator of the Will kit to tell you what options you have, but I’ve seen those options and they’re often problematic (again, either too limited or non existent)! Was the person who created the Will kit a lawyer familiar with drafting Wills and Provincial Wills laws? Did they research all the different options available to you? And are they constantly improving their product by making updates – particularly when the laws change?
There’s no education or warnings – for example, of who can be an appropriate witness (generally, gifts to beneficiaries or their spouses are void if they also act as a witness), what happens if your selected beneficiary predeceases you, or what types of things you cannot do in your Will (e.g. you cannot gift an interest in real estate which is owned by you jointly with someone else because of the right of survivorship; if you do so, that gift will fail and the disappointed beneficiary may have grounds to sue), or how to execute the Will properly to make sure it is valid. Wills are very complex and trying to create one without enough education to make an informed decision may jeopardize your wishes or the validity of the Will itself!
Not based on Provincial Wills laws
Many Will kits don’t take into consideration the nuances of provincial Wills laws (which may cause confusion). Wills are based on provincial laws. So if you lived and had property in Ontario, how you feel about a Will kit that originated from a California that was prepared by a Florida lawyer? I’ve personally seen Canadian companies call the person that is responsible for taking care of your minor children called a “Guardian” in EVERY SINGLE PROVINCE! But that’s wrong! They’re called a “Tutor” in Quebec and a “Custodian of minor Children and Guardian of their property” in Ontario.
Can a non-lawyer actually understand the difference between a properly worded and drafted Will versus an improper one? I don’t think it’s easy for them unless they have formal legal training and understand what they should be looking for. This makes it even harder for the general public to know if the product they are purchasing and using is any good. Take it from me (a Canadian lawyer who has studied Wills laws in Canada, Australia and the UK): I’ve seen some very poorly drafted Wills out there (incomplete, poorly structured and drafted, archaic, etc.). Poorly drafted Wills may lead to their being challenged and rendered invalid.
There are lots of way in which your Will can be invalid. And again, a little education helps prevent against this. For starters, if you don’t have sufficient mental capacity at the time of making a Will, then it is invalid. Your Will – or part of it – is also invalid if you included something (e.g. a gift to someone) as a result of fraud or pressure or mistake. If you write your Will and then get married, your Will is automatically revoked. That is, unless your Will is made in contemplation of your marriage to that specific person. If you sign your Will without two (2) witnesses, then your Will is invalid. And if your witnesses are also beneficiaries (i.e. persons you give gifts to in the Will) or the spouses of beneficiaries, then gifts to them will be void. Any change made to your Will after it has executed (i.e. signed and witnessed) is invalid unless it is executed in the same manner as the Will. If you lose your Will, then when you die you will be presumed to have revoked it! Finally, if you give a gift of real or personal property to someone in your Will but don’t own that property at the time of your death, then that person generally won’t receive anything! Now how many Will Kits are out there that adequately educate you along the way and afterwards to help you ensure that you don’t invalidate your Will? You guessed it: not many!
Be sure to do your diligence before attempting to use a do-it-yourself Will-Kit. They are plagued with problems, may not be appropriate for you, and may cause more harm than good. It’s buyer beware! And the worst part is: you won’t be around to deal with these problems, while your legacy is that of leaving a mess behind!