Creating a Will
There’s a wide range of reasons why Canadians may not currently have a Will in place. The cost of legal advice may seem high, the process may seem too complicated, a shortage of time, or they might just think that they don’t need one. With these reasons in mind, DIY methods may be a preferred drafting option, as in most circumstances “something is better than nothing.” Whether it’s an online kit, or simply writing it out by hand, there are other ways for you to create a legally binding Will to ensure that your loved ones will be taken care of in the event of a passing. Although these DIY methods are convenient, the drafting process itself can be tricky without any legal experience. Depending on the mistake, certain provisions or the Will itself could be invalidated by the court during the probate process. Below will be the most common mistakes made in the drafting process, and issues related to DIY Wills to keep in mind.
Is it a valid Will?
An intention to create a Will does not automatically render that Will valid. The Succession Law Reform Act (SLRA) identifies two options when creating a Will, and sets out the parameters for both. A formal Will is one available option. This type of Will would typically be prepared by a lawyer, or what you would see in a Will kit. It requires the signature of the testator (the Will-maker), and the signature of two witnesses, those of whom are not beneficiaries or spouses of beneficiaries. If a beneficiary does sign as a witness, the provision under the Will pertaining to the beneficiary is void.
The alternative option is a holograph Will. In this case, only the signature of the testator is required, however the entirety of the document must be handwritten by the testator. This means that a filled-out Will kit, or partially typed documents, are not considered to be a valid holograph Will, and will require the other formalities seen in a traditional Will, some of which are detailed below:
Signing
The signatures of the witnesses and testator mentioned above also have rules that apply to them. The signatures must be situated at or around the bottom of the document. Any provision below the signatures, or added after the document is signed, will be of no effect. If an amendment is needed after the document is signed, all previous signing parties must sign off where the change is made.
Clear Wording
Clear writing in a Will ensures the testator’s intentions are accurately stated and adhered to upon their passing. A well-written Will leaves no room for ambiguity, which is helpful in reducing the likelihood of disputes among beneficiaries. Questions over a testator’s intentions give rise to potential challenges and the need for the court’s interpretation, both of which could jeopardize the validity of the Will and significantly reduce the value of the Estate with legal fees.
Tax Treatment
When it comes to services like an online Will kit, one thing to keep in mind is that it is a mass service. This means that, when it comes to your unique situation, it may not adequately meet your needs. Tax planning is an example of something that varies in every case. Depending on what assets are being left and to whom, different tax rules and deferrals apply. Between income taxes and probate tax, there could be a significant tax liability leftover that could have otherwise been minimized with the proper Estate Planning advice.
Appointing an Executor
The Executor (also commonly referred to as the Estate Trustee) is the person that will be administering your Estate after you pass away. They are tasked with carrying out the instructions of the Will and ensuring that all debts and taxes are paid in full. With that in mind, great care should go into who is chosen to be the Executor. Consider someone you trust with financial experience, reliability, and who has their own affairs in order.
But what happens if the Executor dies before you or is no longer capable of administering the Estate? A common mistake is not having backup or alternate Executors named in the Will. With no Executor living or willing to act named in the Will, then family members would have to apply to the court to become the Executor. With the Will potentially containing instructions or discretionary powers, assuring that control goes into trusted hands is paramount.
Closing Remarks
Drafting a Will yourself can be daunting. As the complexity of the situation increases, so do the odds of making a mistake. Although the DIY route can appear to be a cost-effective alternative to obtaining legal advice, the time, cost, and general headache of legal proceedings left upon loved ones to rectify mistakes made is often not worth the money saved in the first place. As such, it is advisable to seek professional help from those who are experienced in the matter.
If you are looking for assistance regarding the preparation, execution, and storage of your Will and other Estate Planning documents, reach out to one of our experienced Wills & Estates lawyers today to start the discussion!
This article is intended for general information purposes only and is not intended to provide legal advice. Readers with concerns about how this affects situations or transactions should obtain the independent review and advice of legal counsel.