Having a will is undoubtedly an essential part of proper estate planning, yet many individuals do not make this a priority. With so many on-line gimmicks proposing quick and easy do-it-yourself will kits, it is not surprising the vast majority of people who use them do not realize the difficulties their loved ones will face as a result. My recent search of the term “will kit” in an on-line database produced search results of 1,848 court cases in Canada!
Will kits are essentially cookie cutter solutions founded on a “one size fits all” philosophy which assumes that everyone’s situation is the same. Unfortunately, the standard form pre-printed wording is not tailored to individual needs. Various values, backgrounds, family dynamics and objectives, to name a few, form a broad spectrum of unique factors that should be considered. This means that an interview with a lawyer which includes a thorough fact finding process is essential for will preparation.
Some dangers and inadequacies of will kits include:
1. Failure to properly execute a will would result in the will being invalid;
2. The inability to take advantage of tax savings regarding probate fees;
3. “Savings” from using a will kit instead of a lawyer may be spent hundreds of times over on legal fees in costly court battles between estranged family members due to ambiguous wording and intricacies in the will.
4. The inability to name specific beneficiaries for different assets within the Estate; and
5. The inability to name guardians and custodians for your minor children.
In Rudling Estate v. Rudling, 2007 CanLII 51794 (ON SC), because of some ambiguous wording in the will of Pauline Rudling prepared with a will kit, her two sons wound up spending tens of thousands of dollars in litigation just for the ruling that all expenses of the estate, except the mortgage on the house one brother inherited, had to be shared equally between the brothers.
Besides providing a customized will and advice which comply with Ontario law, a knowledgeable and experienced Wills and Estates lawyer (as opposed to a corporate, immigration or criminal lawyer, etc. who does not specialize in this area) can advise you with respect to financial and tax implications of your will and estate plan decisions. He or she will also know special cases when they see them and ask questions in order to spot red flags that could spell problems in future.
To discuss your will and estate planning needs, please contact Andrea P. Kelly.
Download the PDF: Concepts Newsletter – Fall 2011
