Thursday, September 16, 2010

Good reasons not to go to a lawyer to do your will...

Lawyers love online will kits, and the like. Why? Well, a lawyer usually just charges a few hundred dollars for wills, and - with a good will, prepared by a good lawyer - the billing on an average estate file will be fairly modest, too. But when you get an estate file with a bad will, especially if there's animosity between family members...well, that's where estate lawyers make lots of money.

Wills have lots of formal execution requirements. I've seen "wills" with only one witness. In Ontario, that's not a will. In fact, the jurisprudence is pretty clear, so that usually isn't worth litigating - your estate will simply be distributed based on the rules of intestacy, notwithstanding your intentions to the contrary - though occasionally in a sizeable estate you'll still get would-be beneficiaries who think it's worth throwing money at to try to give effect to the intentions of the testator.

I've seen handwritten codicils to wills of which parts are clearly invalid, some parts may be valid, and some parts are simply incoherent. The problem is that even a legal opinion doesn't'll need a judicial interpretation in order to get authorization to deal with the assets of the estate (the banks won't touch you without probate in such a case, and probate itself will be unduly complicated when that sort of issue is going on) and that means significant legal expenses even if there is no conflict. If the family isn't getting along, then you might as well be handing your whole estate directly to the lawyers.

If you end up with ambiguity, or technical deficiencies, this can be a real problem.

Mind you, that isn't to say that lawyers are perfect. It isn't uncommon for some lawyers to misuse the term "per stirpes". Odd word, I know. Latin for "by the stock". It's a measure of distribution which basically means that, if a beneficiary predeceases, his/her children will get his/her share. Mind you, it's a little trickier than that - there's syntax to attend to.

I've seen a will that says "To my son Joe per stirpes." Meaningless. It's a measure of distribution, so when you only have one named beneficiary, it has no substance. Consequence? Well, the anti-lapse provisions of the Succession Law Reform Act basically mean that the testator`s son`s gift will still go to his children on a stirpital basis. Problem, however: Most good wills have a legitimacy clause, designed to disentitle a testator`s unknown children from a fling in Maui. Or more to the point, to give the estate trustees more certainty as to the number and nature of beneficiaries. So a properly framed stirpital clause means that there`s no need to search for unknown illegitimate heirs. No need for your estate trustee to stand up on a chair everywhere you`ve gone and say "Hey, are there any illegitimate children of Joe around here?"

I've also seen wills which fail to account for contingencies. "Give my estate to this person as soon as conditions x, y, and z are satisfied." Okay, but what happens if the conditions are never satisfied?

These are the kinds of issues just asking for expensive litigation. The way out is to go to see a good lawyer to prepare your will in the first place, to protect it from the possibility of litigation.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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