Do you actually understand your Last Will and Testament?

Following on from yesterday’s blog posting that discussed how simple a Last Will and Testament can be, I thought it would be interesting to talk about the language that appears in your final document.

Lawyers will often discourage you from creating your own Will, even if you use interactive software, or a website like legalwills.ca or uslegalwills.com. The most often cited reason is that you could make a mistake. But this argument overlooks a very important benefit of creating one’s own Will – you will actually understand what is written.

Most services step you through your family situation, they will ask if you are married, have children and then ask you to name an Executor. You will also name guardians for any minor children, and then describe how you would want your possessions to be distributed. There is usually help along the way so you can click to see explanations on important questions like “how to choose an appropriate guardian for your children”. After working through this service for an hour you are actually better informed about some of the key issues and understand exactly how your estate will be distributed.

Contrast this with going into a lawyer’s office. I offer up the sample once again collected from my local lawyer’s office for the “standard will”

This lawyer asks for your name, name of spouse and address. They then ask a total of 6 questions;

  • Executor,
  • Alternate Executor,
  • Main Beneficiary,
  • Alternate Beneficiary,
  • Further Alternate Beneficiaries,
  • Guardians if children under 18

The help is offered in parentheses under some of the questions; for example under Executor it says (the person who administers the Will). Under main beneficiary it says (the person who is the recipient of the monies and claims in the Will. Everything to spouse?).

Once you’ve completed this form, you pay $450 and walk out with a Will. Now, we would argue that creating your own Will actually puts you in control of the process. You have the opportunity to read frequently asked questions in each section and then read your Will at the end to make sure it reflects what you really want to happen. We have questions all the time from people who aren’t really sure that the distribution of property is described exactly as they intended, but they then have the opportunity to go back into the service and make the necessary amendments.

Lawyers often argue that people do not have the skills, experience or even intelligence to prepare their own Will, but we would argue that if that were the case, then people are walking out of lawyers offices with pieces of paper that are incomprehensible to them. The document will be filled with pages of clauses like

“My Trustee is authorized to fix the remuneration to be paid…and such remuneration is to be charged upon my estate and payable out of the capital and/or income thereof in such proportions as my Trustee from time to time decides. In making any such arrangement as aforesaid, my Trustee may place the investments comprising my estate, or any of them, in the custody of such person or corporation and may transfer such investments, or any of them, into the name of such person or corporation, or any nominee thereof. Without limitation, my Trustee may delegate my Trustee’s investment authority to investment counsel provided my Trustee sets investment guidelines; and my Trustee may delegate his or her investment authority in the course of or as a result of the investment in, or the purchase or holding of, shares or units of mutual fund corporations or trusts or shares or units of pooled funds.”

An important clause, but how many lawyers are taking the time to work through these clauses with the client?

We consider the process of stepping through an interactive service and understanding what steps went into the production of the Last Will and Testament as important as the final document itself. Our customers read their final documents, and ask questions about it, and then make changes based on answers to these questions and at the end of the process they know that they have in their hands a document that is a true expression of their wishes.

Ultimately, you should understand your Last Will and Testament, every line and every clause. The document should express exactly how you would like you estate to be distributed, and should  not include any language that you do not understand.