Photo: Peter Nadolski
Some people prefer to bypass the cost and time of the law office altogether and complete their wills on their own with fill-in-the-blanks kits you can purchase at business supply stores and online for less than $30 and complete in half an hour.
“These are really just one step up from intestacy,” says Pamela Earle, a lawyer with McInnes Cooper in St. John’s, Nfld. “And they’re as good as intestacy if they’re not properly done.” (Bear in mind that DYI options have been seriously cutting into lawyers’ fees for will-making.) Common problems with DYI wills are lack of proper witnessing, imprecise language, improper placement of paragraphs and invalid additions.
“But if carefully completed and witnessed, they are valid and will stand up in court,” says James Naumovich, a Toronto lawyer specializing in wills and estates. And they can be reasonable stop-gap measures if you need to make a will quickly and lack the time to seek legal advice.
Franklin Phillips, a Toronto-based filmmaker, for example, made a simple will using a kit just before his sudden departure for Africa to make a documentary film that would take him into some dangerous conflict zones. It was the only will he ever made, and after his death some 20 years later, his lawyer said the stationary-store testament was still valid, although it did not reflect the reality of his current assets.
The main drawback of a self-executed will, says Susannah Roth, a lawyer with O’Sullivan Estate Lawyers in Toronto, is that you lose the benefit of professional advice that could alert you to tax savings, point out potential pitfalls for litigation and bring errors to your attention. If the testator’s familial situation is simple, all may be well. But if there are multiple spouses and children from different unions, a seemingly simple will can get complicated.
She cites the reported case of a man who wanted to leave the bulk of his estate to his only living relative, a nephew, with a small bequest going to a helpful neighbour. In his thrifty do-it-yourself will, he accidentally named the neighbour, not the nephew, as the main beneficiary. After his death, the two had to go to court to fix the mistake. Luckily, the neighbour was co-operative, but it still cost money. “Having your will done is not a time to be overly frugal, as someone may pursue litigation after you’re gone,” says Regina’s Hardy.
Adds Roth: “Litigation is very expensive and can cost $20,000 before you even get to court.”
Even less sophisticated are purely handwritten- or holographic-wills, where the testator doesn’t even have the benefit of the legal language and prompts offered by the forms. These are often written in emergency situations where the testator is facing death. But these can stand, too. Naumovich cites the 1948 case of Cecil Harris, a Saskatchewan farmer who became fatally trapped under his tractor. He carved this will into the machine’s fender: “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” The fender was probated in court and stood as his will. It is currently on display at the law library of the University of Saskatchewan College of Law in Saskatoon.