There will forever be two very divided camps on whether it is a good idea to write your own Will. On the one side will be the lawyers and solicitors who continually warn of the dangers of trying to “do-it-yourself” often illustrated by stretched analogies; “you wouldn’t perform your own brain surgery now would you?” and then there are the service providers like LegalWills who encourage people to take charge of their own estate planning and remind people that lawyers are there to help you with complex legal issues and offer you legal advice – there is absolutely no legal requirement to use the services of a lawyer to prepare your own Will. Everybody has a legal right to sit down and write their own Last Will and Testament without having to hire the services of a legal professional.
I thought today would be a good day to dissect one of the typical blog articles written by a law practice entitled “Dangers of Drafting a Last Will and Testament on Your Own” posted just at the end of last week. Here are the five key dangers and after each one, our response.
1. “Wills you draft on your own are easier to contest as it is hard to personalize the specific needs of the individual drafting the Will, which can result in issues later on when interpreting the Will.”
Not really sure where to start with this one. Easier to contest is a strange claim because as we discussed in a previous post there are specific reasons why a challenge to a Will is likely to be successful. These are; mental capacity, undue influence, improper execution, fraud and lack of provision for dependents. There is nothing that makes a will written using software more or less likely to be challenged than a Will written by a solicitor as long as it is signed appropriately and no dependents are being disinherited. I am not sure why a software service like the one at LegalWills doesn’t allow for the “Personalizing the specific needs of the individual” and feel it is fear-mongering to suggest that a service like ours would result in a Will that is going to be challenged. In fact, Google “challenging of the Will” and all examples will be for Wills prepared by a lawyer or solicitor – so be warned, there is nothing in a lawyer prepared Will that makes it incontestable. Most newsworthy Will challenge today? Arturo Gatti – a will written by a legal professional in Quebec .
2. “There is a greater risk associated with drafting your own Will regarding execution. For example, in Ohio, an individual’s Will needs to be signed at the end by the individual making it, and be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his/her signature.”
We really have to get over this one, it is not complicated. Yes, your Will has to be signed in the presence of two witnesses who have no vested interest in the contents of the document. They cannot be beneficiaries and in some jurisdictions, they cannot be the spouse of a beneficiary. It comes down to that suspicion of coercion or undue influence. Obviously a beneficiary witnessing the signing is going to look suspicious and that’s why it isn’t allowed. But, this is hardly a reason to seek legal advice from a lawyer. I would propose that anybody with the capacity to step through our service would be able to understand the signing requirements (and we describe them in a number of places). If you are not sure that you understand these signing requirements, then you should probably have your Will prepared by a lawyer.
3. “Wills drafted on your own may be difficult to update when life changing events occur such as divorce or a birth of a child.”
Utterly false. With a service like LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can login to your account at any time, make a change, print a new document and sign the document in the presence of two witnesses to have a brand new, up-to-date Will. It could not be simpler and it is significantly more convenient and affordable than booking an appointment with your lawyer or solicitor every time you feel that you need to update your Will.
4. “Wills that are drafted on your own may contain errors, and therefore, make your will invalid by the Probate Court. If this occurs, it will be the Probate Court that makes the determination of how your estate will be distributed.”
Yes, and so may a Will drafted by a lawyer. However, being that you are preparing your own Will, you are at least likely to read through it to make sure that it reflects your wishes. We actually wrote a blog post discussing how important it is to understand your Last Will and Testament. The legal clauses inserted into our documents are the exact same clauses used by lawyers so if you read through your Will you are the person most likely to understand whether an error has been made.
5. “Additionally, you may believe that you are leaving all of your assets to a certain individual, but you may inherit assets from someone, which in turn may not be included as part of your Will. If and when that happens, your relatives may be contesting your Will in Probate Court.”
This might be one of the most convoluted reasons for steering people away from preparing their own Will I have ever seen. Any Will would include a residuary beneficiary who inherits everything after taxes, debts and specific bequests have been distributed. This example of one of the dangers of preparing your own Will makes absolutely no sense.
The blog post concludes “Bottom line, it is worth the money to have an attorney prepare your Last Will and Testament”. Unfortunately, if these are the best 5 reasons to not prepare your own Will, we would strongly recommend clicking one of the links on the top left of this page and you can have your legal Last Will and Testament in your hands in about 30 minutes.