Keeping up with the law when writing your Last Will and Testament

One of the common arguments made by lawyers against preparing your own Will is that “the law changes all the time and so your Will may no longer be valid”. I think it’s worth exploring this statement a little bit to see if there is any substance to the claim.

Let us start by discussing what makes a document a legal Will. If you type on a piece of paper “this is my last Will and Testament”, name an Executor, describe how you wish your possessions to be distributed, and then sign and date the document in the presence of two witnesses who also sign, you have a basic, but perfectly legal, Last Will and Testament. This is of course not recommended, because there are other matters to include; for example, alternate plans, plans for minor beneficiaries, guardians for minors, and then of course there are your legal obligations within the Will, for example, providing for a spouse or dependents. Very quickly, you can see why the law has an impact on the creation of a Will, and this is why we provide three very different services;, and for our Canadian, US and UK customers respectively. Each service is shaped by the law for that jurisdiction and within the US and Canada there are variations for each Province and State.

The legal variations from one jurisdiction to another include things like the age at which you can make a Will, the number of witnesses required to sign, and what you can legally do within the Will, for example, disinherit a spouse. In fact, most of the variations in the law affect the help text, rather than the final document itself. So how likely is it for a law to change that would make a Will kit invalid?

Laws do change. One of the most high-profile estate planning changes has been with same-sex marriage; a few years ago in most jurisdictions if a person died without a Will, and they left a same-sex partner, the surviving partner would have no claims on the estate, even if they had co-habited for decades. This is changing and the law is recognising the rights of surviving same-sex partners. However, this change in the law does not actually affect Wills, it has a major impact on people dying without a Will.

The other laws that change are inheritance laws, particularly as it relates to taxation. The US has seen almost annual changes in estate tax law from the 2010 repeal to the 2011 $5 million threshold. But again, these changes do not affect the creation of a Will (although it may cause people to look at different estate planning strategies).

Is it therefore possible, as some estate planning lawyers claim, that you could pick up a do-it-yourself Will kit that would be invalidated because of a change in the law? For the most part, “fill in the blanks” kits are so vague that it would be difficult for them to be invalidated. They are often not much more than a blank sheet of paper, and so it would take a radical law change to make the kit out of date. Of course, any accompanying guide could be outdated, and also, the testator’s plan could be illegal, but the kit itself would probably not have to be pulled from the shelves.

However, once in a while a law is changed that could make kits no longer legal, and this type of law is coming into effect this year in British Columbia. Before this law change, estate planning in the Province was for the most part based on the Wills Act of 1837, and the last major review was in 1920. The change of the law is significant and includes things as simple as changing the term “testator” to “will-maker”, but the more significant change is the philosophy to ensure that a deceased person’s last wishes are to be respected, even if the document containing those wishes does not strictly meet the requirements of a will. This allows the court to correct errors in the formal execution of a will. Furthermore the law is changed to no longer automatically revoke (cancel) a Will when a person gets married. It also allows a person to write a Will at 16 (rather than the current 19). The list goes on, and there are many other interesting changes to the law that need to be considered by will-makers.

Of course, it’s important to note that no law would invalidate all Wills made before the Will came into effect.

We are conducting a through review of our services to ensure that any changes required by this new law are updated for our BC customers. There is a good chance that a kit purchased in a stationery store would not undergo this type of review, but of course, legal professionals working in BC certainly know about the law changes.

In summary to answer the initial question; is it possible for a do-it-yourself kit to be invalidated by a change in the law? possibly. And this is just one more reason why we steer people away from kits like this. Either using the services of a legal professional, or using an interactive service like the one at LegalWills is probably the best way to guard against this.

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