Six pitfalls of do-it-yourself will kits you should know about
- If done incorrectly, your will may not be valid.
Wills must meet certain requirements in order for them to be legal. Your do-it-yourself will may successfully communicate your wishes, but that will not matter if it is not legally enforceable.
If your will is not properly witnessed, gifts to certain beneficiaries may be void, or the whole will can be thrown out.
2. You are not getting any legal advice.
As well as preparing a legally valid will, lawyers can tell you how to avoid certain problems that might cost your estate or your beneficiaries money.
Words can have a different meaning when they are used in wills or powers of attorney. For example, the word ‘property’ as it is commonly used has a somewhat different meaning when it is used in a will or power of attorney.
You might not truly understand the effects of what you are filling in, and how the terms might apply to your personal situation.
People who are confused by the language sometimes leave parts of the will blank. Leaving blank spaces can have disastrous consequences.
3. Not all will kits are designed for use in Ontario.
Will kits may include terms that are not legal in Ontario, or leave out important terms which should be there.
4. Poorly drafted wills can complicate the administration of small estates.
Wills do not always need to be probated, especially when the estate is a smaller one. In order to avoid probate, third parties like banks or the Ministry of Transportation use the will to transfer the deceased’s assets into someone else’s name.
If the will looks questionable in some way, banks or other third parties can refuse to accept it. In that case, your executor may have to apply to court for a Certificate of Appointment as Estate Trustee with a Will. This is time-consuming and potentially expensive, and any costs will usually have to be paid out of your estate.
5. They lend themselves more easily to fraud.
When you visit a lawyer to make a will, the lawyer checks your identification and deals with you face-to-face. Lawyers assess your mental capacity to sign a will, and they are required to keep notes about your discussions. If they think your capacity will be called into question, they can take proactive steps to protect your will.
Anyone can sign a document from a will kit. If there is any concern about whether you were really the person who signed the document or whether you understood what you were signing, your witnesses may be asked to give evidence in court. Witnesses may have died, disappeared or lost capacity themselves by the time you pass away.
When your will is done by a lawyer, witnesses usually sign an Affidavit of Execution swearing that they saw you sign your will. If the witnesses are unavailable after you have passed away, their Affidavits can still be used as evidence in court to prove that you were the person who signed the will.
6. Will kits do not always save you money.
Will kits range in price, and some may seem like a bargain.
Making a mistake on your will, though, can easily result in a legal bill of over $10,000. Legal Aid is not available for estate litigation. If your executor has to hire a lawyer, the bill is generally paid out of your estate. Your estate may not be large enough to cover the costs, and even if it is, most people would prefer for their beneficiaries to keep the money.
Depending on where you live and how complicated your estate is, it may be possible to have a will done by a lawyer for only a couple hundred dollars.
As part of our seniors’ program, the Renfrew County Legal Clinic offers wills and powers of attorney free of charge for seniors with low incomes. If you are interested, please call our office at 1-800-267-5871 to complete an intake.
About the author: Gina Rea is a Seniors Lawyer based out of the Renfrew County Legal Clinic. She travels between five Eastern Ontario community legal clinics to provide free wills and powers of attorney to low-income seniors. She also assists people aged 60 and over with a variety of legal issues affecting seniors.