The broken system of the Last Will and Testament

morse

Samuel Morse invents the telegraph and the UK Wills Act was written

We live in a wonderful age of smartphones, social media, biometrics, geolocation and even “smart clothing”. There is however one industry that seems to have dodged the world of technology – the system of writing a Last Will and Testament hasn’t changed much in centuries. In fact, the law pertaining to Wills in the UK was written in 1837, the year that Samuel Morse invented the telegraph, and aside from a few minor updates, the law has not really changed very much. Today, there are at least three major issues with our system of writing a Will;

1. Most people don’t have one

Everybody should have a Will, but most people don’t have one, and for those that do, most are not kept up-to-date. This is a serious issue as people end up dying intestate and their estate is not distributed according to their wishes, or worse, their wealth goes to the government. There are a number of reasons for this;  general procrastination and cost are most frequently cited. In most cases though, it comes down to the misconception that the only people who can write Wills are legal professionals. This is of course not true, anybody can write their own Will, but the legal profession continually scaremongers the general public by making weak analogies (“you wouldn’t perform your own brain surgery, so why would you write your own Will?”) or making it sound more difficult than it actually is “use a lawyer because you have to sign it correctly or it is invalid” (you have to sign the document in the presence of two witnesses….most people can understand this instruction). But the best method for making the process seemingly beyond the understanding of the general public is persisting in using the language of Chaucer and Shakespeare. Wills are still filled with terms like “hereinafter”, “thereof”, “hereunder” and 250 word sentences (I counted an actual sentence in my Will). There is absolutely no justifiable reason for forcing a document written in 2013 to be totally unreadable. There is also no legal requirement to use impenetrable prose to write a Will.

2. Finding the Will

The most frequent call we receive at LegalWills is from a loved one who thinks their family member had a Will, but they can’t find it. There is no registry of Wills, and if there were, most people wouldn’t use them. There is also no way of knowing whether a Will that has been found is the latest version. It is a system that should not exist in the advanced technology age that we are living. The only legal Will is a printed piece of paper with a scrawled signature. Electronic Wills are not legal, nor video Wills, nor digital signatures on Wills. If a person dies in a house fire, chances are their Will went with them. Everybody who dies from a natural disaster will probably be deemed to have died intestate as their Will went with the tornado…flood…tsunami. And don’t assume that writing a Will with a lawyer is any help, we often hear “my father died in Vancouver, he wrote a Will with a lawyer, but we don’t know which one, but I think he wrote it about 25 years ago”. It is a hopeless situation.

3. Collecting the Assets

Assuming that a Will has been written (point 1) and the Will has been found (point 2), the Will probably says something like “I leave my entire estate to …” . The Executor then has to start gathering up these assets; the life insurance policies, bank accounts, government bonds, share certificates, cash, online accounts. The problem is, the Executor has absolutely no way of knowing when they are done. We wrote about this in a previous article when Citibank put out a 16 page supplement to the New York Times with a list of thousands of old accounts asking for people to claim them. There are some tools available to help, like www.mylifelocker.com. But again, it’s a problem that shouldn’t exist in 2013.

At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we are trying to help with each of these issues, and I will describe in more detail in future blog posts. But it is infuriating at a time when I can buy a pair of socks with smart sensors and an accompanying iPhone app that the Wills business seems to have been frozen for 200 years.

Can you break the service at LegalWills?

It is not surprising that we have critics of our service; after all, we are offering a convenient, educational tool, that allows you to write a Will, Power of Attorney and Living Will. We allow you to make unlimited updates to your documents for a tiny fraction of the cost of going to a legal professional and in most cases, the final document looks identical to one costing ten times as much. One of the criticisms of the service is that you can go wrong and create a Will that doesn’t make sense. I would like to address this criticism head-0n.

We actually raise the very same concern with the blank form kits that you can buy from a bookstore. These kits consist of blank pieces of paper, with a guidebook that tells you how to write a Will. We’ve addressed the issue of these blank form kits in a previous blog post, and they are a terrible idea. It is almost impossible to write a well drafted Will using a kit; you have to cover alternate scenarios, include appropriate Executor clauses, only doing things that are legally permitted, and the kit must be tailored to your local jurisdiction. Our service on the other hand, interactively guides you through the process, offering help along the way, and restricts inputs based on your family situation, legal jurisdiction, and the law.

I had a conversation recently with somebody who was concerned that they were permitted to put bad answers in for questions; for example, they named a charity that did not have charitable status, but were not given a warning. They also named an Executor who was not living in the same jurisdiction, but were not warned that this was not advisable. Information about both of these issues is actually covered in the online help, but there is no hardcoded restriction in entering poor choices.

I feel it’s worth explaining our position though with respect to allowing people to enter bad answers;

  • The service is available as a tool to prepare one’s own Will. Just like using online tax preparation software, it does rely on you entering the correct information. If you have three children but claim to have two, we do not check that (but neither do most legal professionals).
  • We do provide information in the accompanying pop-up help text, available on every page. We encourage people to read this text, but we do not force people to read it, otherwise the interaction with our service would be painful.
  • We cannot give specific advice for specific individuals; this would be offering legal advice which we are not permitted to do. We can only give general guidance, so we are not allowed to check everybody’s specific answers to every question.
  • Sadly, the vast majority of people do not have a Will. We have created a service that allows people to finally stop procrastinating and make sure that their family and loved ones are taken care of. It does however require some common sense to use it.

It really isn’t difficult to prepare one’s own Will which is why the services at LegalWills.ca, LegalWills.co.uk and USLegalWills.com are becoming increasingly popular. You can create a nonsense Will if that is your intent, however, you can also create a completely legal Last Will and Testament, and learn a little about the process along the way.

I’m trying to think of a good reason to not have a Will….

The story of Roman Blum has puzzled me all day. He was very wealthy – to the tune of $40M. He had many friends and was a fixture of the New York social scene. He was an incredibly smart business man, and employed a group of professional advisors including accountants and lawyers. He was obviously touched by many social causes having been a holocaust survivor himself. So how could a man in this position, reach the age of 97 and still be procrastinating over the act of writing his Will? How could a man with such a sizeable estate miss the boat entirely, and allow the whole lot to pass to the State treasury?

The New York Times article has some illuminating quotes from his friends and professional advisors, which has relevance to the 60 percent of adults who don’t currently have a Will;

He was a very smart man but he died like an idiot”
Paul Skurka, a fellow Holocaust survivor who befriended Mr. Blum in the 1970s

This comment demonstrates that writing a Will is often not about YOU, it’s about everybody that is left behind to pick up the pieces. It really is idiotic.

I spoke to Roman many times before he passed away, and he knew what to do, how to name beneficiaries,Two weeks before he died, I had finally gotten him to sit down. He saw the end was coming. He was becoming mentally feeble. We agreed. I had to go away, and so he told me, ‘O.K., when you come back I will do it.’ But by then it was too late. We came this close…”
Mason D. Corn, his accountant and friend for 30 years.

The man was 97 years old. He should have written a Will in his twenties and updated it throughout his life. Planning to prepare a Will just before you die is a desperately bad idea.

None of Mr. Blum’s friends know why he never wrote a will. Those close to him say it may have been superstition or, after coming so close to dying during the war, a refusal to contemplate his own mortality.”

At LegalWills, we can guarantee that you are no more likely to die if you have written your Will. We can also guarantee that you will die one day.

He may also have been unwilling to share the full details of his estate with a lawyer, the desire for secrecy a holdover from his experiences during the war.”

We have heard this before and explains why services like those offered by us at LegalWills.ca, LegalWills.co.uk and USLegalWills.com are increasingly popular. They are private and convenient, and your personal affairs need not be shared with anybody.

There is a lot of conjecture as to why Mr Bloom never created a Will, but there is real tragedy here. I am quite certain that if he had taken the few minutes to write a Will, he would almost certainly not left his entire fortune to the State of New York. That is not what he wanted.