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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New lessons from the famous – how to make a mess of a Will

We have seen many examples of famous people making a mess of their estate planning. In this blog we have described the situation of Stieg Larsson who failed to keep his Will up-to-date and also underestimated how much his estate would be worth. We also talked about  Anna Nicole Smith who didn’t update her Will after her child was born. Today we are going to highlight a very frequent mistake with the help of Gary Coleman who died over two years ago. Why now? because just last week a judgement was made on his estate which goes some way to illustrate the toll that a badly drawn up estate plan can have on loved ones. The family have been embroiled in a legal battle for nearly two years and a significant part of the estate has been lost to legal fees.

So what made Gary Coleman’s estate so troublesome?  Firstly, he had a Will written in 2005 naming his manager as the Executor and main beneficiary of his Will. But his ex-wife had a handwritten note from 2007 stating that she was the main beneficiary and Executor. Different jurisdictions have different laws regarding the status of a common-law spouse and the effect of marriage and divorce on the status of a Will, so there is no need to go into details of the judgement but there is a clear lesson here.

I actually feel sorry for Gary Coleman as many people find themselves in this situation. They have taken the time to prepare their Will (in this case in 2005), but in the space of a few years he married, divorced, then lived as common-law. Any lawyer would have advised him to update his Will on at least four or five occasions during those two years. But as we have discovered when dealing with customers at LegalWills many people are being charged as much to update a Will as it cost to create one in the first place. One person called our support line explaining that she had been quoted $100 “per change” to her Will. This puts people in a difficult situation where they try to handwrite changes on their Will, or even handwrite a “codicil” which is effectively what Gary Coleman did. Generally handwritten updates to Wills result in legal uncertainty, litigation, lawyer’s fees and acrimony between remaining loved ones.

This is why services such as those provided by LegalWills.ca, LegalWills.co.uk and USLegalWills.com are becoming increasingly popular. It is precisely because Gary Coleman used the services of a lawyer, that there became a barrier to updating his Will. If he had used an online interactive service, he simply could have logged into his account, made the change and printed off a brand new, up-to date document.

How not to write a Last Will and Testament

People are sometimes scared away from writing their own Will. Lawyers will claim that it is a difficult task that only people in the legal profession truly understand, and with some scaremongering, convince people that they should pay a lot of money for legal advice even though their wishes may be very simple. We’ve presented many arguments over the last few months explaining that writing a Will is certainly something within the intellectual means of many people, particularly with interactive tools that are available today. At the same time, we warn people against the use of cheap kits or blank forms, or even preparing a Will starting with a blank sheet of paper.

There are definitely certain legal elements that have to belong in every Will and it is possible that in attempting to handwrite a Will from scratch, these elements can be overlooked. An example  of how it can all go wrong made the press last month in the case of Irish poet John O’Donohue and his €2 million estate.

Mr O’Donohue was an educated man, he wrote poetry and philosophy for a living, so it would seem that writing a Will should be easily within his intellectual capabilities. Particularly when his wishes were seemingly quite straightforward; he wanted everything that he owned to go to his mother to be divided equally between his family. But he made at least two terrible mistakes in his Will. He went on to wish that his sister was to receive extra care and help and that some funds should go as specific bequests to other individuals. Generally a court would try and respect a person’s wishes if they can be deciphered, but in this Will there were both “mutually exclusive” wishes and there were also extra bequests that could not be quantified or sourced. In other words, you can’t say “leave everythingI own to John Doe and leave a half of everything I own to Jane Doe”.

The other critical mistake was that the witnesses to the signing of the document were his mother and brother; both beneficiaries  in the Will. This alone in most jurisdictions would nullify the Will as there would always be a suspicion of coercion if the witnesses are also beneficiaries.

So, what are the important lessons here? At first it would be easy to make this a shining example of why you should not prepare your own Will, but I think this is an over-reaction. If you use an interactive service like the one at LegalWills.caUSLegalWills.com and LegalWills.co.uk you are guided through the process each step of the way. The signing instructions are included as part of the service, and yes, it is a good idea to read them. Put simply, to make your document legal it must be signed in the presence of two (or sometimes three depending on the jurisdiction) witnesses who cannot benefit from the contents of the Will. This means beneficiaries for sure, and also in some places the spouse of a beneficiary cannot serve as a witness. They are some other criteria as well; adults, of sound mind etc.

It is also important to read through one’s Will once it is completed to make sure there are no conflicting requests. You can’t leave the same thing to more than one person.

John O’Donohue’s story is a sad one (not so much for his mother who ended up inheriting everything), but it should not scare people away from writing their own Will. If you have a straightforward situation it is well within the capabilities of most people to use an interactive tool to prepare their Will. However, do not use a blank kit, and do not attempt to write one yourself starting with a blank piece of paper.

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.

The Perils of a Codicil

In a previous post we highlighted the dangers of making quick changes to a Last Will and Testament. We discussed the reasons why you might want to update your Will and the different options available to you for making an update. There were two important pieces of advice in this post; never make a handwritten change to a Will by scratching something out and annotating the text with a scrawled message. Secondly, don’t make a codicil and attach it to your Will, you are far better off re-writing your Will and starting afresh than adding codicils and attaching them to the original document.

Just a reminder; a codicil is a document that makes reference to the original Will, describes the required change and is then signed and witnessed in exactly the same way as a full Last Will and Testament. In practice this rarely serves as a shortcut because the signing requirements are the same. Furthermore, it is probably more difficult to write your own codicil as it is to write your own Will as there are very few resources and tools available to help in the process. There is still a certain amount of “legalese” that needs to appear in a codicil; statements like “in all other aspects I reaffirm my Will dated …..” which is not a sentence that comes naturally to most people. Codicils were popular back in the day because it saved typing out the whole 5 page document again, but of course, in today’s world of computers and printers, there is absolutely no time-saving. Unfortunately, people have a dangerous misconception that a codicil can simply be written and attached to the Will and this attachment has the same legal weight as the Will itself. Don’t believe me? then this news article from earlier this week demonstrates exactly the issue. A woman’s stepfather sadly killed himself and left a suicide note, then according to the article he:

“also left an addendum to his will – increasing Decatur’s inheritance to $100,000. The bulk of Badini’s $1.18 million estate is going to a well-known children’s charity. In his first will – Badini, a member of the Masonic Lodge – willed everything to their Shriners Hospitals for Children. Despite Badini’s handwritten change – it, and two earlier revisions, known legally as codicils – are being challenged….Richard Lyon, the attorney representing Shriners Hospitals told FOX 5: “It is our opinion that the judge should not have accepted the codicils.” Lyon says a probate judge entered the will and the codicils before anyone from Shriners Hospitals was aware of them. Here is the problem. The changes Badini made were not signed by any witnesses. Maryland law requires two witness signatures.”

That the codicils were ever accepted by the Probate courts is a complete mystery; these handwritten amendments to the Will are completely worthless under the law of this jurisdiction.

So our message remains the same. The easiest way to keep a Will updated to reflect a change of circumstance or a change of heart is to use an online service like those at LegalWills.ca , LegalWills.co.uk and USLegalWills.com . You can not only create your Will, but you can return at any time to make an update and then create a new Will to reflect a change on your personal or financial situation. It’s bad enough that 70 percent of adults don’t have a legal Will, but even worse that most people with a Will don’t maintain them because it is very inconvenient and expensive to do so. This unfortunate case shows that while in a desperate state, the last thing on this man’s mind was booking an appointment with a lawyer to prepare a new Will.

I’ll just let everybody know what I want to happen….

One of the most common reasons cited for not preparing a Last Will and Testament is that “everybody knows what I want to happen” or “it’s obvious who will get my things.” Many people have a natural inclination to avoid all things bureaucratic and take an easier option if an alternative is available. There may also be an inherent distrust of the court system, tax collectors and the like, which prompts many people to avoid these institutions if at all possible.

In some people’s eyes the alternative approach to estate planning is to just jot down on a piece of paper that “my cousin Bill can have my home theatre system, my niece Sue can have my car and the rest can be divided up between my sisters”. Now, let’s explore why this is going to be a complete disaster.

Firstly, there’s nobody named to administer the estate. One of the most important appointments in a Will is the Executor and this person will control and moderate all distribution of the estate. In many cases, they are required to immediately change the locks on any property because sadly, it is only too common for people to rush into a home and pick through the belongings of a very recently departed person. The Executor controls this, and without an Executor there will be a very ugly free-for-all with accusations and suspicions poisoning the family spirit. If an object cannot be found, it will naturally be assumed that somebody has taken it. There’s also the danger of the same item being promised to different people at different times which often leads to previously amicable family members suddenly being unable to work together in harmony. One of the most important impacts of a Will is a formalization of this distribution of personal effects.

The other key responsibility of the Executor is to aggregate all of the items in order to put a value on the estate. You may want to avoid bureaucracy but unfortunately the taxman may still want their share. There may also be funeral expenses to be paid and perhaps even debts owed. If credit card companies are owed something, they will want their money, and this will be paid out of the estate before it is distributed to beneficiaries. Family members cannot start helping themselves to the estate until these obligations have been met and a Will helps to formalize that process.

Then there’s the matter of actually collecting the assets. Try walking into a bank and telling them that an account holder has died, and they wanted you to have everything they owned. You will not get very far at all. A bank will want formal documentation that you are the person that they should be releasing the assets to, and without a Will, the courts will take control of gathering the assets and then distributing them.

Unfortunately, it is very difficult to plan your estate distribution informally using any other document that is not a Will. The good news is that it is possible to create your Will quickly and affordably at a service like those offered at LegalWills.ca, USLegalWills.com and LegalWills.co.uk.

The holographic Will revisited

Yesterday I saw a post on Moneyville.ca with the promising title “Why every 30-year-old needs a Will” . Moneyville.ca is a part of the Toronto Star. The example given in the article to back up the assertion was actually very poor and this was picked up quickly in the reader comments below the article. But by far the most alarming piece of the article was this;

Jeanette Brox, a Certified Financial Planner,  “recommends either writing a holographic will or approaching a professional for help. While it is generally recommended to have a lawyer prepare your will, a holographic will may be worth considering if funds are tight….A holographic will is a handwritten letter, created and signed by the person who wrote it – the  testator — and has no costs. To make a holographic will, write out by hand how you want your possessions to be handled after your death. You should consider documenting who receives specific items, and who receives any remaining, unmentioned items. You must then sign and date the document.”

This is the first time I have seen a holographic Will recommended for anybody in any situation. In fact a holographic Will should only ever be recommended to somebody who is either pinned beneath a rock, or for somebody who lived and died in the 19th century. It is an extremely bad idea.

To start with, holographic Wills are not even recognised in many jurisdictions. In the US, 19 out of 50 states  regard them as valid. Scotland does, England and Wales do not. In Canada seven Provinces recognise them as valid – but not the remaining Provinces. In fairness to the article, it was targeted for Ontario, which does technically allow holographic Wills.

So let’s put aside the validity, and let’s assume that the handwriting is perfectly legible. What are the practicalities of  handwriting a Will? The advice in the article includes “Try to be as specific as possible will (sic) and avoid using any blanket statements. This will help prevent confusion and arguments down the road.”

The example given by Adam Goodman in the article to illustrate the need explains “For example, I own a condo with my girlfriend. Legally, she is not considered my spouse, so if I die without having prepared a will, my share of the property will be awarded to my parents and not my girlfriend.” As many people in the comments noted, this is actually not the case if the property is owned as joint tenants, but let’s move beyond that.

So how would Mr Goodman start? Something like;

“This is the Last Will and Testament of me, Adam Goodman of Toronto. I leave my share of my condo to my girlfriend, and everything else to my parents. Signed, Adam Goodman.”

The first thing to note, is that there’s no revocation clause; you should cancel all previous Wills, codicils and other “testamentary dispositions”.  You should then of course, name an Executor. You have to be clear on who you are appointing to have the authority to administer your estate. You may want more than one Executor, but you must of course name an alternate as we saw in our post earlier in the week that highlighted the difficulties with Bernie Madoff’s son’s Will. If you don’t name an Executor, the courts will do it for you and you’ve almost negated the benefits of having a Will because you are thrown into the court system.

Now we come to the alternate plan; what would happen if Mr Goodman was in an accident with his girlfriend? well, possibly his half of the condo would go to his parents, although this isn’t explicit in the Will because he talks about “everything else” and not the “residue of the estate”. What would happen if his parents weren’t able to receive their inheritance for whatever reason but his girlfriend was alive and well? As he didn’t name an Executor and with his main beneficiaries predeceasing him, with no alternate, he may just as well have not bothered to write anything down. With no parents, spouse or children, his estate would be shared between any siblings (his girlfriend would of course be cut out of his holographic Will as she is not named as an alternate beneficiary of “everything else”). If his siblings are minors, the inheritance will be held in trust, not administered by a family member, because he didn’t cover that in the Will, but by a court appointed trustee.

I could go on, but a standard Will created at LegalWills has about 15-20 clauses and runs about 5-8 pages. This would be the minimum that any Last Will and Testament should contain to be effective. All “what if” scenarios are covered and all Executor and Trust powers are included. There would even be a section for Guardians for children if required.

We talk at length on our site on the dangers of writing one’s own Will. We strongly advise against it giving the example of a statement like “divide my estate equally between my cousins and my friend Bill” which can have at least five different interpretations.

This is why I was very surprised to see Moneyville, the Toronto Star and even a Certified Financial Planner recommend a handwritten Will. It is not better that nothing, it is worse. By far the best middle ground for somebody who doesn’t want to pay the $300-$500 for a lawyer is an interactive service like LegalWills.

Oh, and yes, every 30-year-old does need a Will.

Why every 30-year-old needs a will