TillsonBurg News features my article…

Well, I’m happy to announce that my article entitled “Do It Yourself Will Kits: a Good Option?” appeared in the TillsonBurg’s website under “Citizen Voices”.  Here’s the link:

Here’s the full article:

Do It Yourself Will Kits: a Good Option?

By: Michael Carabash, B.A., LL.B., M.B.A

The average Canadian lawyer charges $382 to prepare a simple Will (source: Canadian Lawyer Magazine). But that may seem like a steep price to pay for something that should be relatively simple. Coupled with taking time off work to get it done, it’s no wonder that roughly half of all adult Canadians don’t have a valid and up to date Will (source: research from CBC radio, LawPro, BMO, and CIBC). But there are lots of advantages to having a Will, such as expressing your wishes, saving taxes and avoiding disputes after you die.

So where does that leave us? Well, I’m sure you’ve seen the do it yourself Will kits online or at Staples. They purport to be “legal”, “Canadian” and “prepared by a lawyer”. They sell for around $25 and you can complete them from your home or office. Some of them are fill in the blank templates; others customizable word documents; the the most advanced ones are fully automated questionnaire that generate a .pdf Will. Sure that all sounds good, but are they actually any good?

The answer is: they could be useful (and they are perhaps better than having nothing), but only in the right circumstances (namely very simple estates). Other than that, they are also rife with potential problems that could lead to their being challenged and even declared invalid (in whole or in part). So what should you be concerned with when assessing these do-it-yourself options?

Here are four things to keep in mind…

First off, these types of products should not be used by those who are mentally incapacitated, are being unduly pressured, who have complex estates, who have international property, who have blended families, who believe there may be infighting amongst loved ones when they die, etc. In these circumstances, the Will can be challenged. It’s best to see a lawyer.

Second, many Will kits don’t warn you about how they can be automatically (and inadvertently) revoked, in whole or in part. For example, in many provinces, if you have a Will and then get married, your Will is automatically revoked unless your Will says otherwise, which is not accounted for in may Will Kit products. Furthermore, many Will kits don’t mention who can be an appropriate witness to your Will. Generally, gifts to beneficiaries or their spouses are void if they also act as a witness. This may lead to disappointed beneficiaries and legal disputes. And the same thing could result because a Will Kit didn’t tell you that you can’t transfer your interest in a jointly held property (e.g. many matrimonial homes!). When you die, your interest in your joint tenant property passes outside of your Will to the surviving owner. So if you try to gift this interest in your Will to someone else, you may end up with a disappointed beneficiary!

Third, when it comes to transferring or dividing up your assets, many Will kits don’t give you many options or the options that are provided are too simplistic and rigid, and may not minimize your final tax bill. So your actual wishes are limited.

Fourth, Will Kits don’t generally do a good enough job educating you about Wills laws. They fail to mention, for example, if you leave someone out of your Will, they might still be able to challenge your Will under dependant relief legislation.

The bottom line is that, regardless of who prepared the Will Kit (lawyer or non-lawyer), it’s important to educate yourself first. Look for reputable companies that carry insurance, have lots of satisfied customers, regularly update their Will Kit (particularly when the laws change), and provide a lot of education to allow you to make an informed decision. All of these things will help ensure your Will is valid when the time comes for it to be verified in court (generally called “probate”).

Full disclosure: I am a Toronto lawyer and the founder / president of Dynamic Legal Forms Ltd., which offers the Will O Matic software (online automated Will creation tool).

written by pmmpa \\ tags: , , , ,

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