THE $29.95 WILL KIT
In recent years we have seen more and more advertisements for do-it-yourself Will kits, either in paper form or over the Internet. The drugstore Will form has been around for more than 25 years, but modern marketing has "dolled up" the drugstore Will with advertising, fancy packaging, and, to be fair, more information. There is obviously a demand for this product, because you constantly hear the advertisements and have even seen these kits in supermarkets.
The main problem areas are as follows:
- Although having the Will properly signed and witnessed might not seem complicated, we have seen a number of errors in our practice. A common error is having the spouse of a beneficiary witness the Will, in which case that beneficiary cannot take the bequest under the Will.
- Legalese has its drawbacks, but lawyers know what other lawyers are talking about (most of the time). A skilled Wills practitioner will know how a clause is going to be interpreted. What you write might seem clear to you, but it might not be that clear to one of your children's lawyers trying to get a clause set aside that does not benefit that particular child. Remember, you will not be here to tell people what you really meant to say.
- Whether we like it or not, modern society is complex. We have complex rules surrounding property law, taxation, family law, and various support obligations. A Will could be "varied" by a court upon application of a spouse or child if it does not provide properly for them. There could be competing interests in the case of second marriages with two sets of children. To pretend these complexities don't exist is not prudent estate planning.
- Many Internet Will kits are based on the U.S. system, or they do not consider different provincial legislation in Canada; most are drafted from an Ontario prospective.
The Advantages of Using a Professional
The advantages of having a professional prepare your Will are as follows:
- A professional has the necessary training and provides an objective sounding board. Some ideas are "legal" but not practical. Is it really a good idea to name your five children co-executors of your estate? The professional can explain the consequences of any of your decisions, and has likely seen the results of good intentions gone bad when decisions are made without the proper knowledge. A professional can see your situation more clearly than you can and will help you prepare a Will that best suits your requirements.
- You might have recourse against the professional if he or she makes a mistake in drafting the Will.
- A professional can provide custom clauses for your Will that fit your particular circumstances. A professional is also in a position to know whether or not your set of circumstances is particularly unique and calls for further tax planning advice, for example.
- As part of the estate planning process a professional will ensure that life insurance, RRSP beneficiaries, and property joint tenancies, which are all outside your Will, are acting together in furthering your estate planning objectives.
- A professional provides value. Most people will only require one or two Wills in their lifetime. The cost for each of these documents can be several hundred dollars, but considering the potential cost of legal problems, never mind the heartache of litigation or misunderstandings between family members, the cost is small compared to the benefits and security provided by a properly drafted document.
When we contemplate people doing their own Wills, we are reminded of a financial services advertisement showing a man on an operating table doing surgery on himself. Is it really worth it? But if you’re still not convinced you need a professional’s help, at least pull it out and read more about Do It Yourself Wills.
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