It’s Make-a-Will Week in British Columbia (April 7-13, 2019), a BC Government initiative to encourage the public to write their Will or bring an existing Will up-to-date. A 2018 survey by Ipsos for the BC Notaries Association found that while 67% of people aged 55 and older have a Will in place, 62% of people aged 35 to 54 and 77% of people aged 18 to 34 do not.
Making a Will is an important part of planning for your future and for your family’s well-being. Having an estate plan and Will in place gives you the peace of mind of knowing that your loved ones will be taken care of and the assets you acquire over your lifetime will be distributed according to your wishes. It can also help reduce the chance of a dispute arising among your beneficiaries.
Understanding your options
Although you do not “need” a lawyer to draft a Will, it is advisable to thoroughly vet your options and exercise caution when faced with the barrage of advertised low-cost services, downloadable forms, online kits and software to create your legal Will. Every year, thousands of consumers create their own Wills, powers of attorney, and other estate planning documents using kits which are available either on the internet or in retail locations. It is easy to be enticed by the thought of saving money with Do-It-Yourself (DIY) Wills, but be careful not to get lulled into a false sense of security. According to Huffpost News, price is the determining factor in the prevalence of consumer DIY Wills, powers of attorney, and other estate planning documents available. However, many pitfalls of DIY Wills stem from their improper usage, as well as the generic nature of the forms themselves, which are not designed to identify or address all of your specific needs and wants.
Wills are specific to a person’s assets, family and legal circumstances, and are carefully worded legal documents. There are significant and specific legal consequences to each word in these documents which may not be understood by a layperson and could inadvertently be altered, rending the Will void or creating unintended meanings. One of the big risks of using an online kit is that there can be unintended consequences (i.e. bequeathing assets that are held in joint tenancy) which can create problems. Due to the complexities of Wills law, it is always advisable to get help from a lawyer or notary public to draft your Will to ensure it is valid and legal.
Depending on your needs and circumstances, some do-it-yourself options can be sufficient if used properly. If your Will is very simple, then you may be able to use a downloadable Will from a reliable source. It is important to note that the forms need to be specific to BC law. It is also important to bear in mind that online forms and kits simply cannot, and do not, give personalized estate planning legal advice, nor can they address the complexities of Wills law, nor the specifics of BC’s Wills, Estates and Succession Act (WESA).
Ensure your Will is in accordance with BC Law
If you do decide to use online kits or forms, make sure that they comply with the legal requirements in BC. If a Will, for example, does not comply with BC law, or if you make a mistake on the form itself, your Will could be deemed invalid. It would then fall to a judge to determine whether or not your Will should be accepted – a process that can be very expansive and the associated costs will have to be paid for by your estate. If you use a kit to prepare your Will and make a mistake or complete it incorrectly, the Executor of your Will would likely have no choice but to go to court to have a judge correct the mistakes – again, a costly process that would be deducted from your estate. If your Will is not signed and witnessed correctly, your Will could be deemed invalid and again, the Executor would have to go to court to seek a judge’s determination.
What happens if your DIY Will is deemed invalid
If your Will isn’t considered legal, it can create a lot of problems for your heirs. A Will that is deemed “invalid” is the equivalent of dying without a Will, known as dying “intestate.” In BC, your estate – your property and assets – will be divided according to provincial law, specifically, the Wills, Estates and Succession Act (WESA). Relying on the courts to distribute your assets and property may or may not reflect your wishes and it will be up to the court to appoint a guardian of your choosing for any children in your care. This is a fundamental right that you relinquish simply by not having a signed, legally valid and up-to-date Will. In short, saving money could cost you more in the long run.
Make sure your Will is signed properly
Issues with signatures often arise when individuals choose to draft their Will themselves or use a kit. A properly witnessed signature is required for a Will to be considered valid in BC. Often, Wills created using a DIY Will Kit are not supervised by a lawyer and therefore are not signed properly. If you are a BC resident, you must sign your Will according to the strict requirements of the British Columbia Wills Act. The Wills Act requires that two witnesses must watch you sign on the last page of the Will (using your normal signature). Failure to do so may render your Will void.
When a lawyer drafts a Will on your behalf, your lawyer is liable for any errors. Many Last Will and Testament kits provide the kits “as is,” limiting the provider’s liability for any loss or damage arising out of information provided in kit, even where the user misunderstands or misinterprets the instructions. Few forms come with adequate explanations, making it difficult or impossible to certain that you are using the form properly. Problems may not be noticed until you have passed on and your Will has become the responsibility of the Executor to administer. Questions as to whether or not you meant what you were signing can open the door to bitter family disputes and costly litigation.
Circumstances whereby you need help from a Wills & Estate Lawyer
If your Will is straightforward, a notary and/or a Will kit may cover the basics, however complexities such testamentary trusts, blended families and staged distributions to children are best handled by a lawyer who can advise on the full remit of potential issues. In addition, if you have any concerns regarding undue influence, suspicious circumstances, or testamentary capacity which need to be considered, it is strongly advisable to seek legal guidance, as these issues are rarely ever covered off in a Wills kit.
Situations where it is advisable to obtain professional legal advice include: if don’t have anybody to name as Executor; if you want to include stepchildren in your Will who you haven’t adopted; if you want to create a Trust fund for your children, payable when your children are older than 19; if you want to donate to a charity; if you’re in the middle of a divorce or a custody dispute; if you own real estate outside of BC; if you own a business or shares of a business; and if you have specific wishes for who should take care of your pets.
An experienced Wills and Estates Lawyer customizes your Last Will and to your own personal estate planning requirements and instructions, as well as to BC’s the Wills, Estates and Succession Act (WESA). For the past 20 years, The Wills, Estates & Trusts division of Hammerberg Lawyers LLP has helped countless British Columbians with Wills & Estates Planning, Succession Planning, Trusts, Probate & Administration of Estates, Committees & Adult Guardians.
With skill and compassion, we help you determine a plan that honours your wishes. From appointing an Executor to administer your assets after death, selecting a guardian for the care of your children, deciding on the distribution of your assets, to the creation of trusts for the benefit of a child or other person, we work closely with you to keep your estate plans current at every stage of your life cycle.
Call 604-269-8500 (Toll Free: 1-888-LAW-5544) to book a consultation and put our commitment and expertise to work for you.