What exactly is a Last Will and Testament?

The Forbes article yesterday that discussed why you shouldn’t prepare your own Will created a great deal of discussion and response. The bizarre examples supporting the argument included the person who left their estate to “insert name here” because they didn’t realize they were actually supposed to insert a name into the space; and that was supposed to be a lesson to us; don’t try and prepare your own Will, you will screw it up.

Yes, according to Forbes, we should all have the guaranteed peace of mind of hiring a lawyer. Interesting that this article should come out on the same day as the attorney handling the estate planning for 104-year-old heiress Huguette Clark is having to answer questions surrounding a $1.5 million bequest to his own daughter, and refusing to deny that he is also a beneficiary in the Will http://bit.ly/9lly32 . But it would be as foolish to cite this example to warn people away from lawyers, as it would to warn people away from preparing their own Will.

So, back to basics; what exactly is a Last Will and Testament? and do you need a lawyer to prepare one?

According to m-w.com it’s “a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death; especially : a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death”

Now, the key to this sentence is “legally executed”, the question that this raises is “what makes a piece of paper a legal Last Will and Testament? ”

This is defined by the appropriate Wills statute in your area. So for example in Ontario it’s the Succession Law Reform Act http://bit.ly/9CtZlA , in California it’s the  California Probate Code http://bit.ly/lan52 , in the UK it’s the Wills Act http://bit.ly/9N6IEb . It turns out, they all say pretty much the same thing. If we take California it states that to be legal a Will must be

  • in writing (i.e. no video Wills, online Wills, mp3 Wills or anything else, just those in writing)
  • signed by the testator (the person making the Will) or by somebody representing them at their request so if for whatever reason the testator is physically incapable of signing, somebody else can do it on their behalf.
  • signed by two witnesses who understand that they are witnessing the signing of a Will (they do not incidentally have to read the Will), and that they are all in the presence of each other at the signing.

Now there are some catches; the testator must have the capacity to prepare their Will, in other words, they must know what they are doing, and they cannot be signing under any external influence. Also the witnesses cannot have an interest in the Will e.g. they cannot be beneficiaries. But that is it. That is the law that defines the elements of how a document becomes a legal Will. Note, there is nothing in any statute that says that a lawyer must prepare a Will, or a notary public, or anybody else. Every individual has a right to prepare their own Will. In fact, it’s so simple that websites can offer you a “free last Will and Testament” because a blank piece of paper becomes a legal Will once it is signed in the presence of two witnesses.

But, there is a note of caution to add; there are good Wills and bad Wills. A bad Will is a blank form will kit sold in Staples and other stationery stores. They have been slammed by the CBC marketplace program and quite rightly so. A blank piece of paper is no way to prepare your Will. We discuss this further on our website at http://bit.ly/9wnZ5h .

A good Will is made up of tried and tested legal clauses that have been used by lawyers for decades and are known to work. That is why unfortunately these Wills end up with impenetrable wording – nobody except the legal industry uses words like wheresoever and hereinafter any more, but they are known to work and so they continue to appear in Wills. Even interactive online services like ours use these same clauses; they may not be the most intuitive expressions of a person’s estate planning wishes, but they are known to work because, believe it or not, they are unambiguous.

So, in essence, anyone can write their own Will, you don’t need a lawyer, but don’t start with a blank piece of paper or free kit, because you may forget to include something or you may be unclear in your intentions. It is important to use established clauses in your Will with a structure that is known to work. That is why the interactive online services like ours are becoming increasingly popular.

Succession Law Reform ActSuccession Law Reform Act

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