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.

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.

 

Why common-law marriage is a myth

Often times we end up writing articles that try and explain the kind of mess you can get into if you don’t have a Will. So often, the complexities of the law can be avoided completely if you write a Last Will and Testament. Common-law marriage is a case in point.

According to some statistics, about one in six people co-habit without getting married; clearly there are many reasons for this which we won’t get into, but if ever there was a case for preparing a Will, a common-law marriage is it. I will now attempt to distill the vagaries of the law across different jurisdictions.

In the UK, the law is simple and unequivocal;  ‘common law marriage’ has no recognition in law and unless you have both made Wills neither of you will have any automatic rights to inherit from the other. The intestacy rules dictate what happens if you die without a valid Will and they make no provision whatsoever for a ‘partner’; it is only a ‘spouse’ who will automatically inherit. You may have co-habitated for 50 years, but in the eyes of the law, you are complete strangers if one of you dies without a Will (you may be able to make some claim based on a “dependency”, but this would require a challenge to the default distribution of the estate). Incidentally, if you do inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.

In Canada, it is slightly more complicated. British Columbia, Saskatchewan, Manitoba, and the Territories do recognize common-law relationships, however, Ontario, Alberta, New Brunswick, Nova Scotia, Newfoundland and Labrador, and PEI do not recognize common-law partnerships and surviving partners will face the same challenges as those described for the UK (above).

The US also has very complicated State specific laws which I can’t go into here. I have spent literally hours looking through State laws to find a good explanation that would fit into this blog, but it cannot be done. In summary there is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States. There are 11 states that recognize the existence of a common-law marriage, and this allows the surviving partner to inherit if there is no Will. For the other States there is no protection for surviving common-law partners.

In short, if you are cohabiting, in a “domestic partnership”, living in a putative Marriage (one that is simply implied) or a common-law situation, you absolutely must write your Will to protect the rights of your surviving partner. You should also prepare a Power of Attorney and Living Will because depending on your jurisdiction, your common-law spouse may have no rights if you were ever to be incapacitated.

Fortunately, a Last Will and Testament, Financial Power of Attorney, Healthcare Power of Attorney, Living Will and Advance Directives can all be created through the online tools at www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk. The whole process takes no more than a few minutes and can protect the rights of your partner. It is a serious issue that should not be put-off.

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.

Bleak House and your Last Will and Testament

I was recently reminded of the Charles Dickens novel Bleak House, which centres around the court case Jarndyce and Jarndyce. For those of you unfamiliar with the story; it tells of a legal battle over a large inheritance which is dragged on through the court system. In fact, it continues for generations until the case is finally closed.

as well as he could make out, it was over. Over for the day? we asked him. No, he said, over for good. Over for good! When we heard this unaccountable answer, we looked at one another quite lost in amazement. Could it be possible that the will had set things right at last and that Richard and Ada were going to be rich? It seemed too good to be true. Alas it was! ……”Mr. Kenge,” said Allan, appearing enlightened all in a moment. “Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?” “Hem! I believe so,”

The lawyers continued to fight the battle over the inheritance until the whole estate was absorbed in legal fees, at which time, the lawyers all stopped working on the case !! Jarndyce

The novel was written in 1853, in a very different World to the one we live in, but just yesterday I saw that, generations on, the legal profession still works in the same way. The bankruptcy of Nortel has so far racked up $755M in legal fees while the parties argue on how to divide $9B in assets, and after nearly a billion dollars in legal expenses, the proceedings are no closer to a resolution. The lawyers have no vested interest in drawing the case to a close as they can continue to bill $1000 an hour in fees.

So what does this mean for your estate? and how can you minimize your assets ending up in the hands of litigating lawyers?

  • Write your Will, make it clear and unambiguous.
  • Do not use a blank do-it-yourself form from a bookstore
  • Sign it according to the signing requirements in your jurisdiction (usually two witnesses must sign, who have no vested interest in the contents of the Will).
  • Write your Will while you are young enough to have the capacity to understand it.
  • Update your Will as soon as your personal or financial circumstances change.
  • Never make an update to a Will by writing on the document or putting lines through sections. Always prepare a new Will when you want to make a change.
  • If you have very complicated affairs, consider getting legal advice when preparing a Will.

It is a myth that preparing your own Will means that your estate is more likely to face a legal challenge. If you use an interactive online service like the ones offered at LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can create a Will as complete and legal as a Will prepared by a lawyer or solicitor. In fact, if you look at the legal fights over Wills, they are frequently prepared by lawyers and we’ve discussed many in this blog, for example Huguette M. Clark, and Anna Nicole Smith. Often though, problems arise from Wills not being updated properly because circumstances change, and a return to a lawyer’s office is too expensive or inconvenient. This is why many people are turning to online services like those offered by LegalWills because it allows them to prepare the document conveniently, but more importantly, these services allow the users to update their document at any time, as often as they wish. In many ways, the services reduce the likelihood of a legal challenge, and the loss of the entire estate to legal fees.

Challenges to Wills…Sir Jimmy Saville’s estate frozen.

In a previous blog article we explained the different grounds for a successful challenge to a Will. We thought that this was an important article as it is often cited as a reason for not writing your own Will. Many times we have seen lawyers claim that if you write your own Will or use a service like the one at LegalWills, then your Will is more likely to be challenged. In our previous article we explained that there are five key grounds for a challenge (see the original article for a more detailed description);

  • Mental capacity: The person making the Will must understand that they are indeed writing and signing their Will
  • Undue influence: In order to contest a will on the ground of undue influence, it must be shown that the testator did something contrary to his or her true desires.
  • Improper execution of the Will: This varies by jurisdiction but in general the document must be signed in the presence of two or three witnesses who are not beneficiaries in the Will
  • Fraud: This can take many forms from the falsification of documents including forged signatures
  • No provision for dependents: This varies widely across jurisdictions but there are sometimes people who have to be included in a Will.

Last week, we saw an example of the “no provision for dependents” in the case of Sir Jimmy Saville. A three page Will, prepared by a solicitor in England, being challenged by a person claiming to be his illigitimate child. In this case though, the solicitor is blameless, as it is almost certain that Sir Jimmy did not divulge to the will-writer that he may have a child from a short intimate encounter in 1970!

But it is worth keeping in mind that according to English law a dependent can challenge based on the Provision For Family And Dependants Act where according to the article

The Act gives a child or other dependant the right to make a claim against their parent’s estate, for which they are required to successfully argue that ‘reasonable financial provision’ was not made for them.

They would also have to prove that whatever amount they sought was a ‘reasonable maintenance’, based on how well they already were able to support themselves’.

It is complicated, because as the solicitor in the article rightly explains

“a judge would pay close attention to what Mrs Ray needed to maintain herself financially. This is where adult children with jobs or earning capacity often fall down, as the vast majority tend to be financially independent and used to providing for their own standard of living, It would be open to the court to conclude that nothing at all was in fact reasonable financial provision, and it may well do that, if it considers that she is well provided for from her own resources.”

I always find the comments underneath the article to be the most interesting and it appears that sympathies lie with the daughter who grew up without a father. The three most approved comments are;

“I assume he didn’t pay for her upbringing so why shouldn’t she have a claim to it now? No amount of money can replace not being loved and raised by both your parents. She will forever be affected by this rejection.”

“She’s entitled to it. Shame on him for not acknowledging her”

“Saville had the opportunity to address this when he was alive and chose not to. He had a responsibility. God luck to her …”

So the lesson? firstly, make sure that you have written your Will, and then make sure that it is up to date. Using a service like the one at LegalWills.ca, USLegalWills.com and LegalWills.co.uk, you can update your Will in a few seconds to make sure that it always reflects the most recent changes to your financial and personal situation. Things can happen in your life, not just to you, but to people mentioned in your Will. It may not be an illegitimate child coming out of the woodwork!! but there are countless reasons why your Will would need to be updated; if the guardian for your children suddenly becomes unable to take on that responsibility, if your Executor no longer seems the most appropriate choice, or if somebody comes into your life who you may wish to acknowledge in your Will.

We will be watching this case with interest to see whether the courts overturn Sir Jimmy’s Will.

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.