Forbes dust off tired arguments against writing your own Will

I’m not sure how many times in our blog we’ve had to present a rebuttal to a Forbes article warning people about the dangers of writing your own Will, but a search through our blog for “Forbes” brings up eight of our articles. A little time has passed, and so Forbes have dusted off their arguments again, and packaged them in a new article with a new author; this time an estate planning lawyer from New York.

It starts with the classic scaremongering tactic of comparing writing a Will with performing surgery. An age old technique, which we debunked in our post from 2010 “Writing a Will is not brain surgery“. Lawyers try to justify their sky high prices by comparing what they do in 15 minutes (step through a series of questions using some pre-purchased software and downloading a Will), to brain surgery or laser eye surgery. The two are nothing close to equivalent. As we said in our previous post, lawyers are trying to make it seem like an black art that can only be performed by trained professionals when in fact

“Let’s get real. Writing your own Will is you, expressing how you would like your possessions to be distributed after you die. It may also include naming the person that you wish to look after your children if both you and the other parent were to both die at the same time. If you sign this document in the presence of two witnesses who then both sign, you have created a legal Last Will and Testament. It is not brain surgery, it is not laser eye correction surgery, it is simply an expression of your wishes for your estate.”

Remember, there is nothing in any law or statute regarding the creation of Wills that mentions the use of a lawyer as a requirement.

The most recent blog article from Forbes goes on to make two important claims. That “The courts are filled with cases of family members suing each other over ambiguous language in a will that must have seemed so easy to understand at the time it was written”. I would love to see a survey of Will contests to see how many result from Wills written using services like the one at LegalWills.ca , LegalWills.co.uk or USLegalWills.com, compared to how many are challenges to Wills written by a lawyer. Whenever I see a Will challenge in the news, it is invariably for a Will written by a lawyer. Some lawyers turn out to be unscrupulous, others incompetent. There is nothing in a self-prepared Will that makes it inherently more likely to be challenged. In fact, last year in the UK the Legal Services Board conducted a “mystery shopper” study of consumer Wills using software, will writing services and solicitors. The results were quite revealing;

“The experts judging the wills had no idea whether they had been drafted by solicitors, will-writers, or indeed a chap who had just stepped off the Clapham Omnibus. But solicitors firms should be aware of what they found. One in four of the wills was ‘failed’ by the panel, and more than one in three was scored as either ‘poor’, or ‘very poor’. The worrying aspect for the profession is that just as many of the failed wills were drawn up by solicitors!”

But wait, the final argument is always presented by estate planning lawyers that “improperly executed wills – for instance a will signed without the required witnesses – can be challenged in court”. This is of course true, but really? is this such a technically difficult concept for a layperson to understand that they should hire a lawyer? If you prepare your own Will, you must sign it in the presence of two adult witnesses who have no vested interest in the contents of the Will. There you have it. If you do this, you will have correctly signed your document.

We de-bunked another Forbes article in a previous post which gave 5 flimsy arguments for hiring a legal professional, but the article from last week appears to be the least compelling. When aggregated together the reasons for hiring an estate planning lawyer or solicitor appear to be

  • it’s as technically difficult as brain surgery (it isn’t)
  • it only costs a thousand dollars to hire a lawyer (a small amount if you’re a lawyer, but a large amount for the rest of us)
  • you may forget to sign the document in the presence of two witnesses (I think we can remember this)

Maybe this is why the Chief Justice of Canada The Right Honourable Beverley McLachlin berated the legal profession as it had “ failed thousands of Canadians who don’t have a legal will, simply because they do not have the money to hire a lawyer to draft one or are so afraid that what it will cost will bankrupt them”