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 challenge of keeping your Will up-to-date

Most professional advisors recommend that you update your Will after key life events. Certainly marriage, divorce, the birth of new children, or the death of a beneficiary would all necessitate a review of your Will. Sadly though, these life events are generally so significant that the updating of your Will is probably the furthest thing from your mind.

We saw the example just over a year ago of Gary Coleman who prepared a Will in 2005 and then over the course of a couple of years married, divorced and then lived as common-law. He attempted to keep his Will up-to-date by adding handwritten notes to it, which resulted in a long, protracted legal battle over his estate. Then there was the case of Anna Nicole-Smith’s Will, which was not updated after the birth of her child. She died when her child was 5 months old, and quite understandably had not found the time to update her Will (in spite of being surrounded by lawyers in her life).

If you think about what really happens during the traumatic life events, like the death of a child or a divorce – how soon can people realistically be expected to book an appointment with a lawyer to re-write their Will? And when many life events occur in quick succession, how significant is the $600-$800 cost for every update?Blue-Eyes-Cute-Baby-HD-Wallpaper-1080x607

The life event that hits closest to home for me is the birth of a new child. It was four weeks after the birth of our daughter that we sat down and said “oh, I guess we’ll need to update our Wills, after all, we needed to name a guardian for the child, and set up a minor trust.” It took us a full four weeks to realise that this needed to be done – and I work full time for the LegalWills websites !!

Of course, one strategy employed by the legal profession is to try to future-proof the Will. Clauses refer to “any surviving children”, or “any known issue” which takes into account the births or deaths of any children between the writing of the Will and the execution of the Will. However, it’s a bit of a workaround, because new children need to have guardians appointed in a Will, and they should have trusts set up for their inheritance.

Fortunately for me, my Will was written using LegalWills.ca, and our other services at LegalWills.co.uk and USLegalWills.com provide the same convenience. I don’t need to pay anything for an update – I simply login to my account, add the new child, name a guardian and then determine the ages at which my daughter will receive her inheritance; even splitting it one third at 21, one third at 25 and one third at 30. It took me about 10 minutes and it was all completed while sitting on my sofa at home – now I just need to print and sign the new Will in the presence of two witnesses to have a legal up-to-date Will.

Like most people, I would not have taken the time to seek out a lawyer and I wouldn’t be prepared to pay $800 to make these changes. Fortunately, by using the LegalWills service I know have the peace of mind that my new daughter is taken care of should anything happen to her parents.

Six ways the law is a hundred years out of date

DPRI-1-1706-M1_fullwilllargeAs the owner of a company that allows people to prepare their own Will – online, at any time, there are many services we would love to add, but are continually stymied by a law that fundamentally hasn’t changed in centuries. We live in a smartphone, biometric, social World which is entirely ignored by our legal system. Which would be fine if our current system worked, but it is horribly inefficient and open to fraud and exploitation. Given the gaping holes in the way our Wills law works today you would think that lawmakers would be jumping all over new technology to make the system work. Here are just a few ways that the head-in-the-sand approach comes up short;

1. A Will must be printed on a piece of paper;
Today we have video, digital assets, countless online social activity and the only way a Will can be valid is if it’s printed on a piece of paper. an “innovation” that’s been around for a couple of thousand years. The most obvious shortcomings of paper are that it burns easily, doesn’t stand up to flooding very well, is very difficult to find, not secure, easy to forge, and is not easy to update. The single most common question we receive at LegalWills is “my Dad has just passed away, and I know he had a Will, how can we find it?”. It would be relatively easy for us to have an online repository of Wills encrypted with digital signatures and made available to Executors exactly when they are required. Unfortunately the law doesn’t allow for this and currently the only legal document is on a piece of paper – lost, burned, or blown away in a hurricane.

2. A Will must be signed by a handwritten signature
This is perhaps the most ridiculous shortcoming of our existing laws. A scrawled signature is currently the only way of proving that a Will belongs to the person making the Will. Which leads to cases like this , where somebody has to call in a “handwriting expert” to validate the Will because “There are four signatures on it and none of them actually look like any of his signatures.” We sign into our phones with fingerprints, and biometric data. My smartphone uses face recognition to log me in. I can buy a door handle on Amazon that uses “subdermal fingerprint scan technology”, yet according to the law, my entire estate is protected by a chicken scratch signature. You then end up with multi-million dollar properties being contested because claimants “maintain that it is fake and <the testator> never made one”. Or people like this former police officer who “has admitted fraud over a will said to belong to his dead father.” His Dad didn’t have a Will, his son typed one up and passed it off as his Dad’s. Granted, he was caught, but for every one of these there are thousands of fraudulent Wills being presented as originals.

3. The inclusion of digital assets
Lawyers are starting to acknowledge the importance of digital assets, but have yet to come up with a secure, convenient way to tie these together with a printed Will. Generally speaking it’s a really bad idea to include your Facebook account information in your Will (Wills are public record once you pass away), but online accounts can have significant value. Domain names are still sold for tens of thousands of dollars. PaddyPower, PayPal, Bitcoin, WordPress accounts can be worth a lot of money. And of course, families may end up fighting over Flickr, Picassa, Facebook and iTunes accounts, so they should really have a named beneficiary.

4. Global assets
We live in a very mobile World and people hold assets in multiple jurisdictions, and indeed in some cases may not even know which jurisdiction the assets are held in. If I own $500k in Bitcoin currency, is this subject to inheritance taxes of any country? what if I live part of the year in the UK, part of the year in Dubai, and have a house in Florida and have a PartyPoker account? I recently read this article about differences between English and Scottish law which explains “The EU has very recently introduced new rules to help clarify the position in complicated situations, where the law of two or more EU countries could apply. From August 2015, most EU citizens will be able to choose whether the law applicable …should be under the rules determined by the country of their residence or the country of their nationality. However, the United Kingdom has chosen to opt out of these regulations.” In other words the UK has opted out of a law that will come into effect in two years time that will solve a 50 year old problem. Good luck finding resolution to the issues of today’s digital assets.

5. The cost of a lawyer
Lawyers continue to overcharge for their services. In most cases a lawyer will have a client complete a blank form, put the information into some software and generate a standard boilerplate Will. And then charge $600 or £400. Not in every case of course, but a lawyer should be able to say to a client “you know, that was a really simple Will, let’s call it $25” but it won’t happen. We’ve had people come to us having been quoted $1,200 for a Will. It’s just out of touch with reality, especially as Wills should be reviewed at least annually and updated regularly.

6. Using the services of a lawyer
We can automate and “app-ify” many things today. Online and smartphone applications are breaking new ground daily and it not difficult to conclude that if Intuit can build TurboTax for business, it is not much of a stretch to address everybody’s estate planning needs with self service tools. At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we provide a service that works for about eighty percent of people, and we direct people to legal professionals for anything complicated. But it is well within our technical capabilities to provide an online tool that works for 99.9% of the population, probably more effectively that the legal profession. A Will is something that everybody should have, access to a lawyer should not be a roadblock to preparing a Will.

What exactly is a Last Will and Testament?

One of the most common questions we receive at LegalWills is “do I need a lawyer’s stamp or something to make my Will a legal document?”. The easiest way to answer this question is to look at the legal statutes that define exactly what makes a random document an actual Will. Let’s take one from each country in which LegalWills operates;

In Ontario; the Succession Law Reform Act requires that “A will is valid only when it is in writing”. It then goes on to say a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

There are a few subtle qualifiers to this, for example, a member of the forces on active service is not required to have two witnesses, nor does a Will that is written entirely in one’s own handwriting – which is a useful provision for people stuck under a rock, but not advisable for anybody else. There is also some restriction on who can serve as a witness in that they must have no vested interested in the contents of the Will. There is no mention in the law of requiring the services of a lawyer, or notary to make the document legal. The law however does not allow for video Wills, a Will that is sung, or any other modern digital interpretations.

The UK Wills Act not surprisingly, has very similar provisions and the signing requirement are almost identical. But more jurisdictions are now accepting “intent” rather than strict compliance with the law. In California they have a “harmless error” provision that states

The will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

More a more jurisdictions are changing their laws to state that the intent of the Will-maker supersedes the formal requirements of a Will. For example, in BC recently section 80 was updated to include;

If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

What does all of this mean? the implications can be seen in this recent news article from Australia. “A Will typed into an iPhone ‘Notes’ app has been declared legally valid by the Supreme Court in Brisbane in a landmark legal ruling. In what may be a legal first in Queensland, and possibly Australia, the Supreme Court ruled that the will typed into the smartphone but not written out or signed would stand.” The article goes on to say “Although the will was not witnessed the court found it had been created on the iPhone by the man with the clear intention of it being legal and operative”.

Of course, we wouldn’t recommend testing the limits of the legal system to see which forms of Will would be acceptable, however, it is clear that there is no need to be intimated by the process of writing your Will. Services like those at LegalWills.ca, LegalWills.co.uk and USLegalWills.com offer a structured service to prepare your own Will. It relies on established legal precedents to create a Will identical to one prepared by a lawyer. We wouldn’t recommend writing a Will on a post-it note, but there is nothing to be afraid of when using a service like ours to prepare your own Will.

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.

How to forge a Will

The title of course is tongue-in-cheek, but it seems that from all of the news lately, there has been a sudden spate of estate disputes and legal challenges. Either because a Will has been forged, signed under duress or written by somebody without the capacity to write the Will. These cases demonstrate that the prospect of an inheritance can bring out the worst in people, create rifts in families, and can result in very expensive legal battles that serve nobody other than the lawyers.

It starts with the bizarre trial of Peter/ Tony Chan who was convicted of forging the Will of Nina Wang – once Asia’s richest woman. Trying to forge a $4 Billion Will is a tricky crime to get away with, and it resulted in a 12 year jail sentence. But Mr Chan was not alone. Next was the Will of Harinder Singh Brar, Maharaja of Faridkot, with another $4 Billion estate. This time it was a team of staff members who connived to leave the entire estate to themselves in Trust, but the courts ruled that the Will was made under duress and therefore illegal.

However, it’s actually more likely that a Will would be manipulated or forged for a more modest estate, and this was the topic of a recent article in the Daily Telegraph discussing the rapid increase in legal battles over estates. There are three key reasons for this rise; firstly, the size of the average estate in the UK has risen from £150k to £265k in a decade. In addition, people are starting to depend on an inheritance as part of their own financial plan – consumer debt is rising and many are banking on an inheritance to get themselves out of debt. And finally, society in general has become more litigious over the years.

Contrary to popular opinion, writing a Will through an online service does not make the document any more likely to be challenged. In fact, just recently, a Will drawn up by a solicitor while in the presence of one daughter, was deemed invalid as the testator did not have mental capacity to write the Will. Turns out that the daughter (who happened to be a magistrate) put pressure on her mother to disinherit the other children. Oh, and she had to pay back the £18,000 in gifts she received in the last few months of her frail life. The real tragedy of this story though is that the estate was worth about £200k, and the whole lot disappeared in legal fees. The whole estate went to the lawyers.

There are some lessons to be taken from this troubling stories. Most importantly, write your Will when you are young enough and have the mental capacity to do it. People procrastinate with their Will writing, thinking that they will prepare it when they are older. We hear all the time people saying “fortunately, I don’t need a Will yet?”. Obviously you don’t, you don’t need a Will until you die, but it’s too late to write one then.

This is one of the reasons that online services like those offered by LegalWills.ca, USLegalWills.com and LegalWills.co.uk are becoming increasingly popular. They allow you to prepare your Will in your own time, on your own terms, but also allow you to update your Will throughout your life, as often as you wish. It makes sense to prepare a Will today, and then just update it as circumstances change.

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.