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

The case for Do-It-Yourself Wills

We didn’t intend to start our blog with this type of for and against argument, but an article was just published in Forbes online today that is screaming for a rebuttal http://bit.ly/d23TjJ . It draws upon outdated understandings of the do-it-yourself will creation industry and poor case studies to warn people against attempting to prepare their own Will. We will take some of these points in turn to deconstruct this article and hopefully present a more balanced view on whether it is appropriate to prepare one’s own Will, or whether you may be better served seeking the advice of a legal professional.

To start with, let us immediately dismiss the types of blank forms that this article is attacking. We go to great lengths at our LegalWills websites to warn people away from blank forms http://bit.ly/9wnZ5h . Anybody has the legal right to prepare their own Will, but attempting to do this with a blank sheet of paper (which is effectively what these forms represent) is a bad idea. You are very, very likely to make a mistake. No, we are proposing that for many people, the use of an online interactive service, is an extremely effective way to prepare one’s Will.

We simply love the old lawyer lines about “writing your own Will is like pulling your own teeth” or “performing your own brain surgery”. That is utter nonsense and either overstates the skills required to prepare one’s own Will, or understates the intelligence level of the general public. Here’s an important exposé; guess what, a lawyer does not write a Will from scratch starting with a blank piece of paper. No, they use software that draws upon well established legal clauses. For example, in Ontario, most lawyers use Histrop’s estate planning precedents http://bit.ly/c4HDm8 which comes with a CD and is described as ” a useful tool for everyday use by the busy estates practitioner.” In the UK, they probably use Parker’s modern Wills precedents http://amzn.to/drw99e . Every country, state and province has the equivalent.

Then the lawyer will ask you to complete a form like this one, picked up in my local real estate lawyer’s office;

This lawyer will quickly bang your information into the software, it will prepare a Will for you, and my local lawyer charges $450 for this service. Note the comment at the bottom of the questionnaire “Complex Wills are subject to a surcharge” in other words anything that requires actual legal advice will cost you a whole lot more. This is exactly what an online service will do for you for $34.95 except you can prepare your Will at home, in your own time, understand the final product and update the document at any time in the future at no charge. The end product will be identical.

We just heard from one of our customers who is now using our service because their lawyer wanted to charge them $150 for each individual change to a Will and she wanted six changes made ! That, quite simply, is ripping people off.

We would in fact argue that the lawyer should only ever be handling complex estates. There are many cases when we refer prospective clients to seek legal advice. Of course, that makes complete sense. If your estate is complex, if you need to set up a trust fund for a special needs child, you own a business, you have property in multiple countries, if your estate is very large; of course, you have to receive legal advice, but the legal community scaremongering a couple who want to make sure that their spouse is their soul beneficiary is disingenuous. And the result? Up to 70% of adults do not have a legal Will in place and of those who do, many are not kept up-to-date.

This Forbes article warns you against preparing your own Will because of some outlandish case studies “One involved someone who left the form blank where instructions for the DIY will said “[Insert name here]” and wound up leaving $200,000 to “[Insert name here]” instead of to a loved one.” Okay; if you feel that you are likely to leave your entire estate to “insert name here” then preparing your own Will is not for you. If you feel that you may be able to understand that this is a placeholder, then you may be okay. By the way, this again is a relic of an example; no interactive online software would allow you to do this, so you would probably be protected anyway.

If you read to the end of the article there is an attempt to provide some balance; “There’s some spectacular software out there that they can now use to prepare clients’ wills in minutes. But many lawyers are still charging as if it took them hours.” and the author herself admits that her estate planning package cost her $4,500. What I don’t quite understand though is that she states that this was prepared some 14 years ago. Our online service would caution any client against leaving their Will collecting dust for 14 years. It is a document that should be reviewed and if necessary, updated on at least an annual basis. Is your first choice of guardian for your child still your first choice 14 years later? do you have any new life insurance policies? any new family members? Fortunately for our clients no appointment is required to make an update, no booking time off work, no $500 fee, they simply bring up their browser, login in, make changes, print off the document and sign it in the presence of two witnesses according to the instructions on the site.

And in ten years of business, with tens of thousands of Wills created, we have never once, not once, received any communication from a person running into difficulty administering an estate based on one of our Wills. Let’s see how many lawyers can say the same.