INSERT SECTION A INTO WIDGET B AND POUR IN RUBBER CEMENT

MISTAKE # 16

Leaving behind a handwritten or will-kit will instead of retaining professional assistance

THERE ARE TWO WAYS in which a do-it-yourself will can backfire and become a big mistake. The first is when the actual tangible document is incorrectly prepared; the second is if the contents of the document are flawed even though the document itself is prepared and signed according to the law. In either case, your estate can wind up in mediation or litigation, taking much longer and costing much more than if you had just gone through a proper estate-planning process with some good professionals at your side.

But writing about handwritten wills and will-kit wills is maybe like being a registered dietician before bikini season: they must suspect as they drone on about the risks of crash diets that all of their wise advice may go up in smoke the next time their client is in line at the grocery store. It can be game over for sensible eating upon spying a tabloid headline that screams, Chocolate Bar Diet whittles 10 pounds off Jennifer in a week!

So we aren’t going into this discussion unaware that the Write-Your-Legal-Will business isn’t highly profitable for somebody and we have no doubt that some of you who are reading this book either have such a will or, against our advice, will one day wander into a bookstore and sneak out with the kit, including the CD.

Just don’t say we didn’t warn you about it.

In our extensive discussions with lawyers who focus on estate litigation and trust officers across Canada, we struck out on finding anyone with positive words about do-it-yourself estate planning. It is not that handwritten wills can’t be prepared in most Canadian provinces and it isn’t that the kits necessarily contain inaccurate instructions. The problem is that the knowledge to effectively use these will methods is missing because, uh, they are not being filled in by estate lawyers. The average person—no doubt a wizard in his or her own realm of dentistry, heavy-duty mechanics or hockey parenting—is out of his or her element when it comes to directing the disposition of assets after death.

As we said at the outset of this mistake, do-it-yourself will planning can sometimes result in either a flawed document because the will signing formalities are not followed, or a properly signed document but one in which the contents include small ambiguities or big mistakes.

the formalities of the document

There are a couple of approaches for a person attempting to make a will on his or her own: one is to prepare a holograph will (and keep in mind that these are not legal in all provinces) and the other is to prepare a formal will.

What is required in a holograph will in those provinces where they are valid was set out in a 1962 Supreme Court of Canada decision: a valid holograph will must be entirely in the deceased’s own handwriting and signed at the end, and it must convey the intention to be a “deliberate, fixed and final expression as to the disposition of the property of the deceased on her death.”

In the 1962 case,¹ as in most cases relating to holograph wills, the will left behind did not deal with all of the deceased’s property and it did not name an executor. And, most important of all, it took three courts, right up to the Supreme Court of Canada, to reach the final decision that the flawed little document actually meant anything! Although it is unlikely that the Supreme Court of Canada will opine again on holograph wills, even leaving your affairs in such a state that any court is required to look at your hand-drafted will is a sorry waste of time, money and family harmony.

The main requirement for a formal will—that is, one that is typed or otherwise not drafted in the person’s own handwriting—is proper witnessing. This involves a careful signing process where three people are all together as the will is signed: the person whose will it is and the two witnesses, neither of whom should be a beneficiary under the will. Proper protocol for signing a will includes each of those three people not only signing the will at the end, but also initialling each page to ensure nothing gets added or changed later. (A lawyer who read this mistake for us wrote in the margin, “It is amazing how many people assume that it is okay for each witness to sign the will at a different time—they don’t understand that they all have to be together at the same time!!”)

These rules apply to a will-kit will because it is not entirely in the person’s own writing: it is either a form with blanks to be filled in, or a CD with the document to be revised on a computer. Because the execution procedure is tricky, formal wills attempted by laypeople are often rendered invalid because the procedure is flawed. Perhaps the person preparing the will thinks that the witnesses are just a “nice-to-have” rather than a “need-to-have” or maybe the witness is a beneficiary (oops!) or maybe the person signs the will on Monday and the next door neighbours act as “witnesses” on Wednesday (oops again!). Unless you are trained in how to prepare a will properly, it is very easy to make a misstep along the way.

the contents of the document

Even if the document itself is prepared according to the law and it is successfully accepted as a valid will, the trouble may just be starting.

Do the contents make sense? Are the will’s provisions what the person really meant? Are all of the person’s assets actually going to be dealt with by the will when he or she dies, or is the will just a snapshot of the assets owned at the date of the will?

To bring our point to life, let’s contrast the self-help approach for wills with what you get when you use a professional.

One thing that they teach in law school that is not helpful in day-to-day life but is pretty useful in estate planning is how to be negative and cynical. Trained this way, good estate lawyers will grill you with questions like, What if she is also dead, then what? What if all your children get divorced? Eventually you may feel like running out of their office screaming, but you’ll also end up with a will that addresses every possible outcome.

And sure, some of the scenarios in your will may not happen, but if they do, you’ll have a will that works. The alternative is dying with a homemade work of art that includes things like outdated bank account numbers, since it didn’t occur to you—not being a negative lawyer and all—that before your death you might get mad at the green bank, move to the blue one, and not have those specific bank accounts any longer.

If that happens, an arsenal of experts in estate litigation and maybe a mediator or a court will need to figure out whether you meant that “any” bank accounts you had when you died were to go to your godson, or did you mean that only those accounts at the green bank, if you still had any, were to go to him?

Hmm, hard to know.

See what we mean? Do-it-yourself will planning is a land mine.

points to take away

• In most provinces (always get advice on this point!), the law provides that people can leave a valid will behind that they have prepared on their own. If a will is entirely in a person’s own handwriting and signed at the end, it is a holograph will.

• If a will is prepared under the auspices of a will kit of any type and therefore includes words that are not in the person’s own handwriting, then it will be a formal will and is therefore subject to the formal will-signing procedure.

• Either way, any will prepared by a layperson (not a lawyer) may not include everything that it should include, or it may be overly descriptive, which can also cause interpretation problems.

• Using a lawyer who is experienced in estate law—and staying alert during the whole process, see Mistake #14!—is the best way to get what you want in your will.