Aside

Keeping up to date with Estate Planning laws

This week in Canada, the Province of British Columbia enacted new laws for the preparation of Wills. The changes were described by some as “sweeping” and the “most significant update in the law for decades”. In reality though, there were only two meaningful changes for service providers like us. Firstly, it lowered the eligible age for preparing a Will from 19 to 16, and secondly it changed the law that automatically revoked a Will on marriage. I’m not quite sure why there was pressure to lower the eligible age; I know that the number of teenagers preparing a Will using our service is very, very low (we’ve had one this year according to our statistics). But the revoking on marriage certainly makes sense. Tragic as it may be, newlyweds can be involved in fatal accidents, and it doesn’t seem right that their Will would be voided because there hadn’t been an opportunity to make the update.Changes Coming

Many lawyers will cite changes in the law as a reason to avoid preparing your own Will, but of course, our services are always kept up-to-date. It does however make for an interesting challenge. Our service covers every State in the US (except Louisiana), every Province in Canada (except Quebec) and the UK (England and Wales only). This gives us over 60 different jurisdictions that have to be monitored. Most of the changes to estate planning law impact people who have not made a Will, and also the Execution of that Will. For example, the new BC law encourages the courts to try and figure out what the testator really meant in their Will, rather than have the estate tripped up on a technicality. The distribution of the estate for somebody who doesn’t have a Will was also changed in the new law, but we would hope that nobody would leave their estate distribution to the vagaries of intestate law and take the decisions into their own hands.

But it means that if you pick up a blank form kit in BC, there is a chance that it may now be invalidated because of the new law. Certainly, any help text associated with that kit would most likely be wrong. You also have to be very careful when using an online service and maybe even request information from the service provider on when they most recently had an update to the service. At LegalWills.ca, USLegalWills.com and LegalWills.co.uk we are diligent about monitoring estate planning laws across all jurisdictions, but other services may have gone online years ago and never been touched.

However, don’t let law changes scare you away from preparing your own Will, certainly at LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can be assured that any change in the law will be reflected in our services on the day of the change.

 

 

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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.

Keeping up with the law when writing your Last Will and Testament

One of the common arguments made by lawyers against preparing your own Will is that “the law changes all the time and so your Will may no longer be valid”. I think it’s worth exploring this statement a little bit to see if there is any substance to the claim.

Let us start by discussing what makes a document a legal Will. If you type on a piece of paper “this is my last Will and Testament”, name an Executor, describe how you wish your possessions to be distributed, and then sign and date the document in the presence of two witnesses who also sign, you have a basic, but perfectly legal, Last Will and Testament. This is of course not recommended, because there are other matters to include; for example, alternate plans, plans for minor beneficiaries, guardians for minors, and then of course there are your legal obligations within the Will, for example, providing for a spouse or dependents. Very quickly, you can see why the law has an impact on the creation of a Will, and this is why we provide three very different services; www.legalwills.ca, www.uslegalwills.com and www.legalwills.co.uk for our Canadian, US and UK customers respectively. Each service is shaped by the law for that jurisdiction and within the US and Canada there are variations for each Province and State.

The legal variations from one jurisdiction to another include things like the age at which you can make a Will, the number of witnesses required to sign, and what you can legally do within the Will, for example, disinherit a spouse. In fact, most of the variations in the law affect the help text, rather than the final document itself. So how likely is it for a law to change that would make a Will kit invalid?

Laws do change. One of the most high-profile estate planning changes has been with same-sex marriage; a few years ago in most jurisdictions if a person died without a Will, and they left a same-sex partner, the surviving partner would have no claims on the estate, even if they had co-habited for decades. This is changing and the law is recognising the rights of surviving same-sex partners. However, this change in the law does not actually affect Wills, it has a major impact on people dying without a Will.

The other laws that change are inheritance laws, particularly as it relates to taxation. The US has seen almost annual changes in estate tax law from the 2010 repeal to the 2011 $5 million threshold. But again, these changes do not affect the creation of a Will (although it may cause people to look at different estate planning strategies).

Is it therefore possible, as some estate planning lawyers claim, that you could pick up a do-it-yourself Will kit that would be invalidated because of a change in the law? For the most part, “fill in the blanks” kits are so vague that it would be difficult for them to be invalidated. They are often not much more than a blank sheet of paper, and so it would take a radical law change to make the kit out of date. Of course, any accompanying guide could be outdated, and also, the testator’s plan could be illegal, but the kit itself would probably not have to be pulled from the shelves.

However, once in a while a law is changed that could make kits no longer legal, and this type of law is coming into effect this year in British Columbia. Before this law change, estate planning in the Province was for the most part based on the Wills Act of 1837, and the last major review was in 1920. The change of the law is significant and includes things as simple as changing the term “testator” to “will-maker”, but the more significant change is the philosophy to ensure that a deceased person’s last wishes are to be respected, even if the document containing those wishes does not strictly meet the requirements of a will. This allows the court to correct errors in the formal execution of a will. Furthermore the law is changed to no longer automatically revoke (cancel) a Will when a person gets married. It also allows a person to write a Will at 16 (rather than the current 19). The list goes on, and there are many other interesting changes to the law that need to be considered by will-makers.

Of course, it’s important to note that no law would invalidate all Wills made before the Will came into effect.

We are conducting a through review of our services to ensure that any changes required by this new law are updated for our BC customers. There is a good chance that a kit purchased in a stationery store would not undergo this type of review, but of course, legal professionals working in BC certainly know about the law changes.

In summary to answer the initial question; is it possible for a do-it-yourself kit to be invalidated by a change in the law? possibly. And this is just one more reason why we steer people away from kits like this. Either using the services of a legal professional, or using an interactive service like the one at LegalWills is probably the best way to guard against this.