How not to write a Last Will and Testament

People are sometimes scared away from writing their own Will. Lawyers will claim that it is a difficult task that only people in the legal profession truly understand, and with some scaremongering, convince people that they should pay a lot of money for legal advice even though their wishes may be very simple. We’ve presented many arguments over the last few months explaining that writing a Will is certainly something within the intellectual means of many people, particularly with interactive tools that are available today. At the same time, we warn people against the use of cheap kits or blank forms, or even preparing a Will starting with a blank sheet of paper.

There are definitely certain legal elements that have to belong in every Will and it is possible that in attempting to handwrite a Will from scratch, these elements can be overlooked. An example  of how it can all go wrong made the press last month in the case of Irish poet John O’Donohue and his €2 million estate.

Mr O’Donohue was an educated man, he wrote poetry and philosophy for a living, so it would seem that writing a Will should be easily within his intellectual capabilities. Particularly when his wishes were seemingly quite straightforward; he wanted everything that he owned to go to his mother to be divided equally between his family. But he made at least two terrible mistakes in his Will. He went on to wish that his sister was to receive extra care and help and that some funds should go as specific bequests to other individuals. Generally a court would try and respect a person’s wishes if they can be deciphered, but in this Will there were both “mutually exclusive” wishes and there were also extra bequests that could not be quantified or sourced. In other words, you can’t say “leave everythingI own to John Doe and leave a half of everything I own to Jane Doe”.

The other critical mistake was that the witnesses to the signing of the document were his mother and brother; both beneficiaries  in the Will. This alone in most jurisdictions would nullify the Will as there would always be a suspicion of coercion if the witnesses are also beneficiaries.

So, what are the important lessons here? At first it would be easy to make this a shining example of why you should not prepare your own Will, but I think this is an over-reaction. If you use an interactive service like the one at LegalWills.caUSLegalWills.com and LegalWills.co.uk you are guided through the process each step of the way. The signing instructions are included as part of the service, and yes, it is a good idea to read them. Put simply, to make your document legal it must be signed in the presence of two (or sometimes three depending on the jurisdiction) witnesses who cannot benefit from the contents of the Will. This means beneficiaries for sure, and also in some places the spouse of a beneficiary cannot serve as a witness. They are some other criteria as well; adults, of sound mind etc.

It is also important to read through one’s Will once it is completed to make sure there are no conflicting requests. You can’t leave the same thing to more than one person.

John O’Donohue’s story is a sad one (not so much for his mother who ended up inheriting everything), but it should not scare people away from writing their own Will. If you have a straightforward situation it is well within the capabilities of most people to use an interactive tool to prepare their Will. However, do not use a blank kit, and do not attempt to write one yourself starting with a blank piece of paper.

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New Year’s Resolutions and your Last Will and Testament

January is always our busiest month of the year at LegalWills; it is a time for reflection and also a time for looking to the future. Over the holidays many of us have spent time with relatives and discussed family matters. There may have been a conversation about a family member who passed away in 2011, and the chances are that person made a mess of their estate planning (the vast majority of people don’t even have a Will in place). Maybe around the dinner table on Christmas Day there was a discussion about your own family’s succession and estate planning; who will get the cottage? or maybe Grandad promised you his pocket watch. One important talk that we had was the difficult discussion surrounding the guardianship of our daughter; who would the most appropriate guardian be, and would they be prepared to take on the responsibility?

New Year’s Resolutions are often made in the area of healthcare and financial wellbeing, and these are the very areas addressed in a complete estate plan. Two key healthcare documents are the Living Will and Power of Attorney which allow you to both express your own wishes if you are ever unable to speak for yourself, and also allow you to appoint somebody to make both financial and healthcare decisions on your behalf. Along with eating a healthier diet, and working out, it should be a resolution to get the most important documents in place; life insurance, powers of attorney and a living Will.

Financially there is probably no more important document than a Last Will and Testament, it is part of a sound financial plan and not a document to be written just before you die (chances are, when your death is imminent it will not be a convenient time to write a Will).   The New Year is a great time to either create a Will, or review one that is already in place. It makes sense to; review your choice of personal guardian for your children, make sure that you have chosen the most appropriate person to serve as Executor of your estate, and take another look at your beneficiaries. So you may have a resolution to keep an eye on your spending, save money where possible, try to increase your income. But the most important step in your financial planning is to put your Last Will and Testament together.

It only takes about 30 minutes and is very affordable if you use one of the interactive online services now available like www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk. There is no legal requirement to pay for the services of a lawyer or solicitor to create a Will, everybody has a legal right to prepare their own Will.

So why not cross one resolution off today and get your estate planning documents in order?