Don’t let other people’s mistakes put you off preparing your own Will.

Every once in a while there is an unfortunate case of somebody making a mistake when attempting to prepare their own Will. A recent case in Florida has been reported, quite literally, thousands of times through different law blogs as a “cautionary tale” of how things can go badly wrong when you try to prepare your own Will. You can look up the case of “Aldrich v. Basile” and you will see about 100,000 results with headings like

“Case Illustrates Dangers of Executing a Will Without Legal Assistance”
“Do-It-Yourself Wills: Cheap Now, Expensive Later?”
“Why Preprinted or Online Legal Forms Are Not Advisable”

I’ll explain my position on this very sad situation by firstly summarizing exactly where Ms Aldrich went wrong. In an E-Z Will kit form she listed some specific assets to go to her sister and if the sister were to predecease her, the list of assets would go to her brother. Then a few years later her sister died, so she updated that Will with a handwritten note that stated;

This is an addendum to my will dated April 5, 2004. Since my sister Mary jean Eaton has passed away, I reiterate that all my worldly possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto, S. Daytona FL 32119.

There were two issues; firstly her original Will only covered the list of assets, not everything else. However, even though the handwritten update covered “all my worldly possessions” it was only signed in the presence of one witness not two and so was not accepted by the courts.blank paper

With respect to the first error, this is unfortunately a limitation of blank form kits, and this is why we steer people away from them – It is easy to forget things. It is important to not confuse a blank form kit with a fully interactive service that guides you through the process and checks for errors. When a person makes a mistake with an E-Z Will kit form it is a warning bell for using this type of form, not for trying to prepare one’s own Will using interactive software. If you use a service like ours this mistake is absolutely impossible to make.

But I personally feel that the second error reflects badly on the Florida Supreme Court. In their ruling the judge stated that

Unfortunately, I surmise that, although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent. While we are unable to legally consider Ms. Aldrich’s unenforceable handwritten note that was found attached to her previously drafted will, this note clearly demonstrates that Ms. Aldrich’s true intent was to pass all of her “worldly possessions” to her brother, James Michael Aldrich

Thankfully an increasing number of jurisdictions have introduced laws that try to respect the intent of the testator and they will not allow true intent to be over-ruled by a technicality. In this case, everybody knows what Ms Aldrich meant, everybody knows what she wanted, but the lawyers and the courts successfully managed to throw this out. The court declared that Ms Aldrich had died without a Will and gave a share of the estate to her nieces according to intestate law.

The judge actually stated that she was deciding the case contrary to the testator’s “true intent”, Ms Aldrich did not want any of her estate to pass to her nieces, they were never mentioned in any of her documents. One legal blogger was very critical of the decision claiming that;

Apparently, the court wished to inflict post-mortem punishment on the testator for engaging in DIY estate planning….The court blamed the “unfortunate result” on the fact that Ann did not seek legal assistance in creating her estate plan. 

So now to the reaction and estate planning lawyers are collectively rubbing their hands with glee and providing all kinds of examples of why trying to prepare your own Will is a mistake. Like this one

A lot of times clients come in saying they want something very simple,” says Rubin. “But then you find out their daughter had a baby by artificial reproductive technology. If the definition of ‘child’ in your will isn’t up-to-date, you could disinherit your grandchild.

The claim is nonsense. This clearly does not happen “a lot of times” and perhaps the conclusion should be that if this situation does not apply to you, you can safely go the “do-it-yourself” route.

They then go on to say

These are the conditions each state requires for a will to be considered valid. The standard in Florida is two witnesses.“Every state has its own quirky rules,” cautions Rubin

Actually…it’s not that quirky, every single state requires two witnesses. Across the internet, the scaremongering goes on with countless obscure examples of how attempting to prepare one’s own Will is going to lead to trouble. As an aside, the vast majority of challenges are to Wills prepared by estate planning lawyers but we rarely see “a cautionary tale for what can happen if you use a lawyer to prepare your Will”.

The fallout of this unfortunate case leads me to the following recommendations;

Do not be scared off from preparing your own Will. It isn’t as complicated as some people want you to believe. If you have a complicated family situation then you need legal advice, but most people do not. From time-to-time there will be an article in the media about somebody who made a mistake with a Will kit. This does not mean that preparing your own Will is a bad idea. Over 65% of people do not have an up-to-date Will in place, and many of these are under the mistaken impression that you must use a lawyer to prepare a Will. You should take things into your own hands and make sure that your Will is in place.

Do not use a blank do-it-yourself Will kit, there is a very significant likelihood that you will make a mistake or not cover all situations that need to be covered. Blank forms have way too many spaces that have to be completely correctly. When you see a Will completed through our service you can appreciate how complicated the document can be, with various trust clauses and powers to the Executor. If you do not have a legal education you would not be able to create a well drafted Will using these kits.

Do not use a handwritten note to express your wishes; it opens your estate up to challenges and it may not fulfil the requirements of a Last Will and Testament or Codicil.

Do not use a Codicil to make an update to a Will. Just create a new Will. If you use an online service like ours, you can just login, make the change and print off a new Will. It’s easy.

I just wish that common sense would have prevailed and that the courts would have respected the final wishes of Ann Aldrich. It’s a real shame that they wouldn’t.

Tim Hewson is the President and Founder of the LegalWills group of companies. Offering online interactive estate planning services through LegalWills.ca, USLegalWills.com and LegalWills.co.uk. Founded in 2001, these services have become market leaders helping hundreds of thousands of people prepare their important legal documents.
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The scourge of the online Will kit

Here’s the problem; everybody needs a Will, but lawyers are too expensive and inconvenient. As a result 65 percent of people don’t have a Will. To address this issue, countless “downloadable Will forms” proliferate across the internet. People use these forms and their loved ones end up with a mountain of trouble.

Let’s explore the evidence;

Are lawyers really too expensive or inconvenient? According to the customers who come to LegalWills, yes, absolutely. They are being quoted anything up to $1200 or £800 for a simple Last Will and Testament, but more commonly it is in the region of $600 or £400. The more significant problem is that updates are being charged anything up to $100 or £50 per change. There is also a gap between what lawyers think people can pay, and what people are prepared to pay. I read this recently on a legal blog, written by an estate planning lawyer

At least once a week I get a call from a potential client. The question is always the same: “How much does X document cost?” This is always a perplexing question. Usually the answer is “I don’t know.”

I know of an attorney who agrees to quote the client a price over the phone if they can answer one simple question: “What color tie am I wearing today?” …This lawyer knows that people will protest- “how can I know what color tie you are wearing if I am not there?” The lawyer then points out (if the client has not gotten it already) that both questions are similar.

So here’s the disconnect; the lawyer thinks he is clever and the client is a bit dim. The prospective client on the other hand wants to know whether they should include in their household budget some money to prepare a Last Will and Testament. In order to do this, they need to get a feel for how much it will cost. I cannot think of any other situation where you would blindly procure a service, hand over your wallet and ask the service provider to charge you whatever they want (veterinarians and dentists aside!).

So most people end up without a Last Will and Testament in place, and of those that do, most are not kept up to date. So we find service providers offering a “downloadable Will” sometimes free of charge. I saw a new one just last week – I have embedded a screenshot of the body of it here. Last Will and TestamentThey have tried to convey some authenticity with some calligraphy at the top and an impenetrable legal sentence to kick off the document

 

I JOHN DOE KNOW ALL PERSONS BY THESE PRESENTS:

 

But the meat of the document comes in article IV, where you are given space to explain how you would like your estate to be distributed. Personally, I feel that this document should be illegal; it is preying on people who don’t want to pay for legal advice and who are trusting this company to provide them with a legally binding document. But it is nothing short of impossible to complete a satisfactory Will using a blank page like this. You need to create alternate plans, trusts, Executor powers, residual plans and without these you end up with an estate like Ann Aldrich who used E-Z Legal Forms to prepare her Will. She listed out her possessions and instructed all of these things to go to her beneficiary. Unfortunately she didn’t explain what should happen to everything else. The result was a family battle over her estate and a judgement that included this warning “I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms”

Fortunately, there is a very large middle ground between expensive lawyers and dangerous blank forms, and this is being filled by interactive services like the ones at LegalWills.ca, LegalWills.co.uk and USLegalWills.com. These services guide you through the process with a series of questions, and then verifies that you have covered all scenarios. It only allows you to do things that your jurisdiction permits, and double checks for things like minor children having guardians and trusts set up appropriately. Clearly some people still need expensive legal advice and custom clauses to be written, but services like this work for the vast majority. So much so, that when a recent study from Oxford University listed the most likely jobs to be replaced by technology, paralegals were 4th on the list with a 94% probability of being replaced by software. Most people who have a Will written by a legal professional have their information typed into software and their Will generated from templates (the staff in the office usually do it), but online services like LegalWills are granting access to those tools directly to the consumer.

People are not likely to use a lawyer who refuses to tell them how much they will charge. But we are hoping that we can steer people away from blank form kits.

 

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.

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.

5 good reasons to write your own Will rather than see a lawyer

I need to preface this article by clarifying what I mean by writing your own Will. I do not mean sitting down with a blank piece of paper, and I do not mean using a blank form kit that you may buy from a bookstore. Either of these approaches is an absolutely terrible idea. No, I’m talking about using interactive software like the tools offered at LegalWills.ca, USLegalWills.com and LegalWills.co.uk. These services protect you from making the mistakes inherent within a blank form kit – like writing something in your Will that is not permitted by law, or not covering all possible situations. In fact, these services are now so good, that they are not just an option “if you cannot afford a lawyer”. They actually have some significant benefits over using a legal professional to prepare your Will.

You will actually get it done
Over 60% of adults don’t have a Will in place, and many complain that it’s the effort of booking an appointment with a lawyer that presents the most significant barrier. Many of our customers use LegalWills because they have procrastinated and they are leaving on a trip, or going into surgery and explain to us that they need “something” in place, and they’ll then get a “proper Will” written some time in the future. One of two things then happens; they either don’t ever get around to preparing the “proper one”, or alternatively, they eventually make an appointment with their lawyer, pay $600 and then find that their new Will is the same as the one prepared at LegalWills. When I say “the same”, I mean identical, word-for-word, exactly the same. The lawyer uses the same software that we use, so the two documents are indistinguishable from each other.

Future-proofing
Another significant barrier to preparing a Will is the notion that you would only write it once in your lifetime. After all, for $600 you’d expect it to be good for at least a few years. Unfortunately though, a Will lasts as long as there are no changes in the circumstance of anybody named in the Will. If your alternate Executor moves abroad, it’s probably a good idea to update your Will. Or supposing a charity comes into your life and you wish to recognize them in a bequest, you may want to update your Will. Unfortunately, with a lawyer it means booking another appointment and paying another $600 each time. With LegalWills you simply login, make the change and print out a new Will. It takes 10 minutes and costs nothing.

Educational
You may be the type of person who actually wants to learn about something as important as your Will. Unfortunately most lawyers do not have the time or inclination to step you through every clause in your Will and explain to you the implications of each sentence. Using a service like the one offered at LegalWills you are able to create your Will at your own pace and read as much or as little as you need to in order to educate yourself. Every page and every decision comes with accompanying help text so you will actually understand your Will and the decisions that were made to create your document. Most people who use our service actually feel empowered after preparing their own Will and completely understand the contents.

Private
There may be details to be included in your Will that you may not be willing to share. You may not feel comfortable telling a lawyer that you would like to leave your old school tie to your nephew and a long list of other personal memorabilia. There may be an organization that means a lot to you that you may not wish to share even with a lawyer. Using our service you get to choose exactly what is included in your Will and you needn’t discuss it with anybody if you don’t want to. You can make an update at any time without needing to explain to anybody the trigger for that update. It is truly your own private and personal document.

Affordable
With all of these advantages you’d almost think that the services at LegalWills would be at least as expensive as going to see a lawyer. But ultimately you are preparing your own documents, and you are not receiving legal advice from us. In North America you can prepare your Will at LegalWills.ca and USLegalWills.com for $34.95, at LegalWills.co.uk it costs £24.95.

Preparing your own document using our services is not an option for people who “can’t afford” legal fees. It is an educated choice for people who need to prepare a Will, who want to make updates whenever they need to, who want to learn a little more about the process, and who protect their privacy. Yes, it’s more affordable, and yes, the final document is identical, but there is so much more that comes with a service like ours.

Free Last Will and Testament forms

We’ve seen a number of these recently; the “free” or the $5 Last Will and Testament. In fact, I’ll offer you one right here; a Free Last Will and Testament form . But be warned, it’s an absolute piece of garbage and will probably cause more problems for your family and loved ones than not creating one at all.

The market is becoming crowded for online Will services.

At www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk we charge $34.95 and  £24.95. We do this because we have worked with top legal teams in Canada, the US and UK to create our services. We have a support team in place who can help users step through the process and we have professional affiliations. We also stand by our services as top quality, legal, affordable alternatives to seeking legal advice. We know that our service is not appropriate for everybody, and we often recommend that some people with complicated situations not use our service and instead seek legal advice.

So what does a $5 Last Will and Testament give you? Some websites operate like the Giant Tiger of legal forms; they have hundreds or thousands of downloadable PDF’s which probably will not work for you; there will be no alternate provisions, help text, support, residual beneficiaries, minor trusts, and it is quite possible that you will write something in your Will that is simply not legally permitted e.g. disinheriting dependents. But a $5 Will company does not care about this.

I’m actually surprised by the quality of many online sites that claim to have been created by lawyers. They obviously have no concerns that a large number of people will use their service thinking that they have a legal Will, when many will be legally invalid. I’m not sure how the law societies will feel about the quality of product being created by these lawyers. Sadly, we cannot compete on price with a downloadable pdf form. But we do feel good about our service and know that quality legal documents have been created by tens of thousands of people.

Many articles talk about the dangers of preparing your own Will, and it is really the cheap, daily discount Wills that are being dismissed in these articles. Unfortunately, it is very difficult to discern a quality online service and a poor one. Look for services that are interactive (not downloadable blank forms), have been in place for a while, have online help with phone and email support, and a service that generates a final document that runs at least 4-5 pages. If it doesn’t, then it has not included all of the clauses that should be in a basic Will. I wish I could just list services that you should not use, but that is probably a bad idea.

More reasons to write your own Will

It seems that Forbes publish an article almost every month warning people against preparing their own Will. The latest was a couple of weeks ago entitled 5 Reasons to get Professional Help Writing your Will.

Once again, we will deconstruct the arguments and explain why many people are more than capable of preparing their own Will. Remember, everybody has a right to prepare their own Will and there is nothing that a lawyer can do to make a Will more legal. You go to a lawyer if you need legal advice, there is no legal requirement to use professional help to prepare your own Last Will and Testament. So let’s look at the arguments;

1.    Attorney costs are minimal

I suppose this really depends on your definition of “minimal”. The article explains that an attorney may cost as little as $1000, which could be a “mere 1%” of the value of your estate. Here lies the problem. $1,000 is a heck of a lot of money to pay for something that is drafted in a few minutes by a computer program. Don’t have the mistaken belief that a lawyer will carefully draft your Will starting with a blank piece of paper. They plug your details into a computer program that generates a Will. In fact, it’s a remarkably similar process than the one we use at www.legalwills.ca, www.legalwills.co.uk and www.uslegalwills.com . Except we charge $34.95 and £24.95. If you think that $1,000 isn’t a lot of money, then by all means go and pay for a lawyer, but for the rest of us, an online tool can be equally effective and more affordable.

2.   A Will must be error free

This is true, and the example that is always given is that the document must be signed in the presence of two witnesses that are not beneficiaries in the Will. This is correct, and we reiterate this point throughout our service. Yes, you have to sign the document in the presence of two witnesses. If you can do this, your document will have been signed appropriately and legally. The other examples that the article uses to illustrate the point are a little odd; it claims that people forget to update their Will. This is always one of our main arguments for using an online service. You can update your document at any time no matter how trivial the change may be. If you use a professional, you may be faced with that $1,000 fee every time you return to make a change. Forgetting to update your Will is not specific to preparing one’s own Will and is in fact far more likely to be an issue for anybody who sought professional help in preparing the original document.

3.    Vague Wording Used in a Will May Cause Confusion

This is definitely an important point for anybody considering writing their own Will starting with a blank form or blank Will kit. But the DIY Will service has progressed a little over the last decade. The article claims that “An attorney will use standard language that doesn’t equivocate”. Well guess what; so does an online interactive software program. In fact, it uses the exact same language that the attorney will use.

4.     Your Assumptions for Writing a Will Are Likely Incorrect

The example given to illustrate this point is “If you will property to an heir, what happens if you outlive that heir?”. Oh dear, this is called an alternate plan or alternate provision. It is built into any service and our service at LegalWills does not allow any bequest to be made without there being an alternate plan and a residual beneficiary. Many online services may not have this, but quality services will have this built in.

5.   A Handwritten Will May Be Considered Invalid

Absolutely correct, but again, nothing to do with using an online service like the one at LegalWills. You are not handwriting your Will, you are using interactive software to create your Will and the final product is as legally valid as a document created by a legal professional.
There are some awful Will kits out there, but just because there are poor, cheap downloadable forms, it does not mean that the decision to create your own Will is a bad one.
The lists created by legal professionals often do not bear scrutiny and this latest list from Forbes has not relevance to a service like ours at LegalWills.