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The perils of will kits during the Coronavirus pandemic

Posted on 22 April, 2020 at 9:30 Comments comments (1)

During the Coronavirus pandemic (COVID–19) many people may be doing a Google search on “do-it-yourself” will kits to try to get their financial and family affairs in order. You might believe these will kits are an inexpensive and easy way to protect your assets and provide for your family. However, failing to get proper legal advice can lead to numerous legal problems after death. Many will kits do not cover key elements, without which your wishes may be misinterpreted; or worse, all or parts of your will could be invalidated.

 

If you do not have a will, or if you have recently reviewed your estate plan and changes are needed, it is recommended that you speak with an estate planning lawyer.

 

Dangers with the use of a will kit

Will kits can cause a number of problems (even outside of the COVID-19 pandemic). A will kit is a one-size fits all solution and includes a “fill in the blanks” standard form that allows a user to click boxes or complete blanks regarding his or her financial circumstances and last wishes. This may lead to a number of legal problems that increase the costs to you and your estate, and leave your loved ones in a very difficult situation.

 

Some problems with will kits include, but are not limited to the following:

 

1. Will formality requirements

What happens if the will kit that you use is intended for a different jurisdiction? Will kits designed for another jurisdiction (for example, the U.S.A.) often lack the formal requirements to make a valid will in Canada or across the various provinces. Not complying with the required number of witnesses and the status of the witness can invalidate a will. If these formalities are not clearly adhered to, the validity of the will may have to be determined at a court hearing which involves the review of evidence. This causes significant delay and increases costs by an amount that far outweighs the cost of seeing a lawyer to prepare your estate plan to begin with.

 

2. Will interpretation and the exclusion of important clauses

The use of a will kit may lead to a partial intestacy due to uncertainty in the wording of the will, failing to deal with all of your assets, or where one of the beneficiaries has predeceased you. In these cases the statutory default rules will apply to the distribution of all or a portion of your assets. Will kits may contain clauses or words in which the intent may not be clear due either to the ambiguity of the clauses or the lack of clarity of the language used, with reference to your specific circumstances.

 

Will kits may also miss important clauses, such as a surviving beneficiary clause or a family demise clause. These clauses set up a backup plan in the event your first set of wishes cannot be carried out and you do not update your will in time to address changes in your family or your assets. A properly prepared estate plan anticipates changes and allows flexibility to ensure that your ultimate wishes will be satisfied.

 

3. Lack of Legal Advice

An estate planning lawyer provides you with specific legal advice with respect to your unique circumstances, and allows you to tailor a will that both protects your family and reflects your true intentions. When financial advisors and estate planning lawyers work together, they are able to consider the dynamics of a client’s situation and address a variety of concerns such as minimizing tax, providing for a minor beneficiary or disabled child, or protecting a child’s inheritance from divorce proceedings. Will kits often do not consider the impact of family dynamics and the particular needs of the beneficiaries named in the will.

 

Your estate planning lawyer can also review the ownership of your assets and provide important advice regarding joint ownership and direct beneficiary designations in the jurisdictions where these are possible. These assets typically pass outside of your will. Jointly held assets are a significant cause of estate litigation. Will kits do not address the advice needed relating to these assets.

 

4. Exposure to Estate Litigation

As noted above, the use of a will kit often leads to a court hearing to determine the validity of a will because the required formalities of execution are in question. In addition, because of uncertainty resulting from filling in a blank form, will kit wills are often successfully challenged in court, by someone who may interpret your wishes differently than you intended. The use of a will kit also makes your will more vulnerable to a successful will challenge on the basis of lack of capacity or undue influence, because there is usually no independent witness to provide evidence about your capacity at the time the will was made. These issues can be avoided with proper legal advice, including having a qualified lawyer supervise the signing of the will and take contemporaneous notes. Your estate planning lawyer and the lawyer’s notes are important evidence, which is critical to upholding a will’s validity if it is ever challenged.

 

5. Evolution of the Law

Wills are dynamic and always changing with life events. The law is constantly evolving and the will kit may be based on old laws. Estate planning lawyers know the current law and prepare wills accordingly, even in very difficult times like a pandemic. With a will kit you may not be aware of changes that affect the will kit form.

 

A word of caution, using a will kit may be cheap but the question is, “is it is worth it?” The difference in cost between will kits and having a will professionally done by an estate lawyer is no comparison to the cost of estate litigation.

 

Our team at Miller Thomson LLP is here to guide you through the process of having a properly prepared estate plan. A call to your Miller Thomson trusted advisor can help you find the right solution for you and your family.


Submitted by Jacklynn Pivovar


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