If you were to find yourself charged with drunk driving, would you represent yourself in court? The answer is no. So why would you do-it-yourself with a will, a tool meant to disburse all possessions and money you have acquired over a lifetime, a document appointing a guardian for your children? When comparing an online will or a will kit in Ontario, with those drafted by a lawyer who specializes in wills and estates, major differences appear. The first and most obvious is that there is no legal advice that comes with your will kit. You are on your own, so cross your fingers and hope that you’ve done it right and that your decisions are reflected in the will you’ve created. You may think your will mirrors your wishes, but the impact the law has on your circumstances may change what happens in reality. You may think that you’ve had your will witnessed correctly, but there is a list of people who are not able to witness the signing of your will. You may think you are allowed to gift your house in Thornhill, but if you own it jointly with someone else, it automatically goes to the surviving owner. You may think it’s a good idea to leave 20% of your estate to the Lung Association of Ontario, but your estate lawyer can explain why an outright gift may be a more prudent choice. There are countless circumstances which must be examined before a will can be said to be properly drafted and executed.
The second problem is that what you want to happen with your property may not be an option provided to you by your will kit. Will kits only have a few options. If your wishes don’t fall into one of the choices provided, too bad. If the will kit misses the details necessary to effectively carry out your wishes, too bad. And again, the onus is on you to identify whether there are deficiencies with the will kit. That is not the case when working with a lawyer who specializes in wills and estates.
Your life and your choices do not fall into a cookie cutter framework. Your estate lawyer is there is to ensure that every detail is present so that your family does not encounter problems once it’s too late. Your lawyer is a real person, having a real conversation with you to determine what your needs are, what your wishes are, and how to best protect your loved ones.
Countless people have come before me requesting a “basic will” or a “simple will” when their circumstances are anything but. Similarly, one may believe that their circumstances are appropriate for a will kit because all they are looking for is this so-called “basic will”. Being able to identify the details necessary to ensure a seamless disposal of your property is another matter. It’s only upon death that it will be seen that the will kit was in fact not appropriate or not properly used. But by then it is too late. The family feuds have already begun, your family’s inheritance is going down the drain, and your estate is tied up in litigation. So much for simple. Should have called a lawyer.
The final problem I have with will kits is that there is no one taking notes, which may be needed later if someone challenges your will. There are situations where disgruntled family members believe your choices are not fair, or are not justified; situations which cannot be avoided, no matter how well the will was drafted. Who can verify that you were mentally competent to sign your will? Who will document the reasons for your choices in the event that someone later questions why you disinherited your family member, or why you did not give equally to each of your children. Who can affirm that you weren’t forced to give your life’s earnings to your next door neighbour? A lawyer’s notes are important to prove that your wishes were indeed yours at the time of signing your will and that you made your decision voluntarily.
Retaining a lawyer to draft your will may be more expensive than using a will kit at the outset but it will inevitably save your family headaches, delay, and a lot of money. Avoiding taxes and avoiding will challenges are the reasons you go to an estate lawyer. There is no point in making a will if it ends up being contested in court due to poorly drafted provisions or neglecting to obtain legal advice. The fee for having a will drafted properly by a lawyer is a lot cheaper than the cost of a will challenge, the payment of which is payable by the estate. A will challenge results in much less in the beneficiaries’ pockets. Do it right the first time. Have a lawyer draft your will. Epstein Law is right around the corner.
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