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Dying Dangerously: The Risks of Making a Homemade Will

We've all seen those homemade do-it-yourself will kits at the local bookstore: "Wills Made Easy! $19.99!" Why would you ever pay a lawyer hundreds of dollars when such a cheap option is staring at you from the bookstore shelf?

Because your beneficiaries deserve better. Spending money on a will is not for your benefit. The ones who will benefit are be your spouse, your kids, your grandkids, your friends - anyone to whom you want to leave a legacy. Here are three significant risks of leaving the fate of your estate in the hands of a homemade will.

Risk #1: Your Wills Kit Is Probably Wrong

The most popular homemade wills kit on the Chapters/Indigo website was published in 2008. As of today, that's 10 years old. Would you trust the advice of a lawyer who hasn't stayed up to date on the law for the past decade? Who hasn't made sure his or her skills reflect the current best practices? Because, for $20 (or free if you find an online template), that's what you're getting: old information. Not the best practices and outdated practices.

In 2013, BC brought in sweeping changes to our wills and estates legislation with a new act called the Wills, Estates and Succession Act. This piece of law has upended lots of old estate planning practices in BC. Note the year: 2013. That's 5 years after the top-selling wills kit on the Indigo website was released. Add in that this wills kit is sold all over Canada (each province has its own wills laws) and you've got some outdated, generalized, one-size-fits-all forms that are likely incorrect and out of date.

Risk #2: You're Leaving Your Will Vulnerable to Challenges

So, you've ignored risk #1 and decided to do a homemade will. Now you cross your fingers and hope that, after you die, nobody argues that your will is invalid. Some ways that your will can be challenged are:

  • you didn't sign the will in front of two witnesses;
  • if you DID sign the will in front of two witnesses, one or both are named somewhere in the will (executor, beneficiary, guardian, etc.);
  • you did not have mental capacity when signing;
  • you made the will under duress or undue influence; or
  • you left your will open to lawsuits by disinherited kids (on this point, see my previous blog post: How Can I Write Someone Out of My Will (And, Should I)?)

Hiring a lawyer to do your will minimizes the risk of these challenges being successful. When you hire a lawyer, you're not just hiring someone to write down your wishes. You're also paying for your lawyer's observations and notes. These notes are critical to ensuring that your will stands up to estate litigation.

Your lawyer's notes help to protect your estate from claims that your will was not made properly. During your initial consult, your lawyer ensures that you know what you're doing, you have a general idea of the value of your assets, and that nobody's forcing you or holding a gun to your head. Your lawyer will also ensure that the witnesses to the will are valid. While, of course, you can't completely prevent a lawsuit, the presence of your lawyer's notes confirming capacity and free will could go a long way in helping to prevent a claim from being successful.

Risk #3: You're Not Getting Advice When You Need It Most

Ignoring the other big risks of doing your own will - using an outdated kit and leaving your will open to challenges - the biggest risk of all, in my opinion, is that you are losing out on legal advice. While doing a will may seem straightforward, it is not simple. When you sit down with your lawyer, your lawyer will inevitably ask you questions that shift your way of thinking, or direct your mind to scenarios that you haven't considered. While you may only write one will every 10-15 years (or, perhaps, once ever), a busy estate planning lawyer will do potentially dozens of wills every month. This means that your lawyer has essentially seen it all, and will be able to give you advice on your estate planning needs no matter how unusual or sensitive your situation. A homemade wills kit (or a free online form) isn't going to give you any advice. And no matter how simple you think your estate planning needs are, there's always a place for sensible, insightful legal advice for your situation. Estate planning is more than a will, and there are lots of other tools that your lawyer can help you create to accomplish your goals.

Conclusion: Invest in Your Legacy

As I hope these risks - using a bad wills kit, leaving your will vulnerable to challenges, and not getting legal advice - have shown the potential for disaster that can occur due to a homemade will. One final thought: dying with an inadequate will isn't your problem. You won't be here to worry about it. Instead, you're pushing the problem to the next generation and burdening your family with all of the frustrations that come with a poorly written will. The homemade will you write could not only cost your estate thousands in legal fees and perhaps unintended probate fees, but could also create emotional turmoil amongst your surviving family members as they struggle to comprehend your final wishes.

We're in the business of avoiding that messiness and helping you achieve your goals. Please give us a call at 604-465-9993, or email me directly at jnay@peaklaw.ca, if you'd like to schedule a free consultation to talk about your estate planning needs.