Should you attempt to write your own Last Will and Testament?
There are many people that think their estate is simple, and that by drafting their own Will they can save a lot of money. However, creating a Will without professional advice can lead to an insufficient Will which could cause difficulty and delay, as well as added expenses paid from your Estate, during the Probate process.
Lawyers often come across Will Makers who claim they do not need a complicated Will as they wish to leave everything to their children. They think the Will should read:
“This is the Last Will and Testament of me, John Smith, of Kamloops, British Columbia. I leave my entire estate to my children, Sally and Joe Smith.”
Unfortunately, a simple Will like this leaves out a lot of things. For example, what if John Smith wrote a different Will before this one? What if his children die before him? What if he has a wife? What if he has another child from a previous marriage? These types of issues are why it is so important to obtain proper legal estate planning advice.
Most legal professionals say you should never write your own Will, and usually they are right. There is only one situation where writing your own Will without professional guidance is acceptable: You have, and always will have, virtually no assets.
Handwritten Wills or ‘holograph’ Wills are not valid in British Columbia. There are also pre-printed ‘Will Kits’ available in booklet form and online. They are specifically designed to cover only the most basic estate planning needs. However, even for a basic estate a Will Maker must be very careful, as the instructions are minimal, and no legal advice is provided. In fact, all come with a disclaimer – “The information contained in this book/program is not legal advice and is not a substitute for legal advice. For legal advice consult with a lawyer.”
It is easy to make a mistake with a pre-printed form, and it likely will not be discovered until after you are incapacitated or gone. By then it will be too late to rectify. Sadly, it is your loved ones who will be left to deal with the issues arising from an improperly prepared estate planning document.
Property, probate, trust and death tax laws vary from Province to Province. There are also many specific issues that can affect an estate plan, including the definition of descendants (for example, step-children are not included in this definition), homestead rights, common law and same-sex marriages and jointly held assets. A pre-printed form cannot properly cover all of these issues. It is also important to remember that information you see on TV or hear from a friend may not be the law in British Columbia.
An improperly prepared Will can set the stage for a potentially expensive and problematic estate probate. Often, it is more expensive to sort out the issues caused by an improperly prepared Will than paying for a properly drafted Will in the first place.
Everyone’s assets and family situations are different, and so are everyone’s estate planning needs – including Wills, Powers of Attorney and Representation Agreements. What will work for you and your family will most likely be different from what will work for your parents, siblings or co-workers.
If you would like advice or for more information regarding estate planning matters please contact Chahal Priddle LLP at 250-372-3233 to set up an appointment today.