The “armchair principle” in Will writing

I recently read this article from the BBC talking about the importance of being clear in one’s Will. Ambiguous wording in a recent Will resulted in a £500k legacy going to the government. The article also took the opportunity to try and draw a line between this situation and the dangers of preparing one’s own Will. There wasn’t any indication that the mis-directed bequest came from a do-it-yourself Will, but these unfortunate situations somehow are used as examples of why you need to pay high fees for a legal professional.

Specifically, and it is important to be specific, this article warns people with;

Strict rules governing the way a will is made and executed mean that errors can be made very easily which can invalidate it. These errors often include not signing the will or having it witnessed correctly.

This does seem to be the most used scare tactic; pay for a legal professional or your Will may be invalidated. Let me shed some light on these strict rules; the Will must be signed at the end, and the signing needs to be witnessed by two people with no vested interest in the contents of the Will. This includes beneficiaries or the spouse of a beneficiary. It is also a good idea for you and your witnesses to initial each page. There. That’s it.

This article also makes reference to “the armchair principle” that exists in the UK, and it being adopted by many Canadian Provinces. In essence it means that your Will is not going to be invalidated because of a technical error. Every effort will be made to understand the intention of the person writing the Will. For example if somebody wrote “my sitter, Jane Doe”, but meant “my sister, Jane Doe”, the chances are the courts will say “he doesn’t have a sitter, it wouldn’t make sense for him to leave his entire estate to his sitter, he obviously means his sister, the one named Jane Doe”.

It is important to be clear and unambiguous with instructions. Obviously it doesn’t make sense to leave your entire estate to “my friend John” without being specific about who you mean, but with a little common sense, anybody can prepare their own Will.

Services like those at LegalWills.ca, USLegalWills.com and LegalWills.co.uk take care of the legal clauses and jargon, and also protect against doing anything you can’t legally do in your jurisdiction. There is really no need to be fearful of preparing your own Will, and these “strict rules” that the lawyers warn us of, are actually very simple.

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Should Will Kits be banned?

You will often hear legal professionals talking about the dangers of writing your own Will, and we regularly defend an individual’s right to prepare their own legal documents if they are given the right tools to do so. But we mustn’t confuse the right to prepare one’s Will, with the use of a blank-form, do-it-yourself kit. We firmly believe that using a downloadable blank form is dangerous, and we would even go as far as to say, it should be illegal.

We have previously discussed our concern with Will kits; the form-based, downloadable, fill-in-the-blanks type kits. Our main reservations with these kits include;

  1. They place too much onus on the end user to put in the correct information
  2. They are not customized to local jurisdictions
  3. There is no check to ensure that everything written in the blank spaces is legal
  4. There is no check that all scenarios and all alternate plans are include
  5. There is no way for the end user to know if they have a legal Will once the form has been completed
blank form

Blank form kit…good luck!

We recently received an email from a prospective customer asking us why our service cost money, when they could download a free kit from the internet, so we took a look specifically at the kit they were considering; it shocked us.

The kit had a banner at the top calling it “Legal Canadian Will Kit documents” . The user was then prompted to enter their name, the name of their Executor, Alternate Executor, and Guardians for children. It was followed by a blank page, with the subheading “I REQUEST that my Guardian(s)…”, with a signature page stating that the Will is on this page and the preceding pages. A little odd, because the signature page was then followed by a page describing the distribution of assets. This means that the distribution of the assets was not even in the Will !!

To top it off, the page after that was blank with the subheading “I give my Executor the following powers…”

I defy any member of the general public to correctly express a number of clauses for Executor powers – really, what on earth is a person supposed to include here? To give you some context, a Will created using our service includes thirteen clauses outlining the Executor powers and some are complicated.

The concern here is that this blank form would not be admissible in a court of law. It simply would not work. Presumably, the document is being downloaded on a regular basis by unwitting customers who are trying to save some legal fees. But surely there needs to be some level of accreditation or governance before a website can mislead so many people, so dangerously.

At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we have to somehow differentiate our service from the cheap or free downloadable kits. Our services are fully interactive, developed by estate planning lawyers in each jurisdiction and provide help every step of the way. For example, if you have minor children (the definition of which varies across jurisdictions), our services will prompt you to set up a trust for those children (a section completely missing from the kit we sampled). In our 13 years of service we have had countless Wills pass through the probate process, and never once has one of our Wills had an issue.

We believe that most people do not have to pay expensive legal fees to prepare their own Will, but we also believe that the downloadable blank forms need to be regulated or banned outright. We would recommend that people try our service, and compare it to a blank kit, then decide.