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.

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.

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.

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