Do-it-yourself wills not worth the risk
By AdvocateDaily.com Staff
“In most cases, I would say definitely don’t do it, unless you’re fully aware of all the things you need to do and all of the potential risks. You certainly shouldn’t do it if there’s even a whiff of dispute in your family because the person who causes the dispute is going to be the person challenging your will,” says Allinotte, owner of Allinotte Law Office Professional Corporation.
“If you have loved ones, you want to make sure that everything is as easy as possible for them, and a do-it-yourself will is really not the way to do it. For the amount of money saved, I don’t think it’s worth it.”
Lawyers are the only professionals in Ontario allowed to draft a will, Allinotte says, noting that paralegals, accountants and financial advisers could be engaging in the unauthorized practice of law if they prepared a will.
She points to a number of factors that strongly indicate a lawyer should be preparing the will. They include situations where the testator has received a diagnosis of cognitive impairment; is divorced or separated; has a common-law spouse; has recently been in the hospital; or owns a business, residence or income property.
“If you have any assets to speak of, you’re taking a significant risk if you’re relying on a do-it-yourself will,” Allinotte says. “If you’re a single person with no attachments and really no assets, that’s the lowest-risk situation. Most of us are not like that.”
When legal counsel prepares a will, they have a conversation with the testator and review important details, such as what they own and what their intentions are, she says. “We make notes on that, and if your intentions are questioned after your death, the lawyer’s notes are often used as evidence,” something that can’t happen when a will kit is used, she adds.
Lawyers also assess capacity, which is essential when a testator is elderly, Allinotte says, and sometimes evidence from a physician is needed.
“You must have a certain level of capacity to make a will, and if you don’t, that’s one way a will can be struck down,” she says. “I’ve had some clients who may have been capable, but they were so ill and were on such significant medication that they didn’t have capacity at the time to give me instructions either.”
Undue influence also must be assessed when a testator is elderly and is accompanied to the lawyer’s office by an adult child, Allinotte says, adding that in such cases, she meets with the client alone and takes notes. “I have had an adult child show up with the parent and say, ‘Do a will right now.’ And I’ll tell them that that’s not my practice.”
Witnesses are crucial once a will is drafted and can lead to significant issues after the testator dies, she says. Often the will itself is satisfactory and doesn’t raise any red flags, but the witnesses are family members who are named in the will, making them ineligible, she adds.
More importantly, witnesses have to be tracked down after the testator’s death so that an affidavit of execution can be submitted to the court “to say that the legal requirements of the will being witnessed in Ontario were met,” Allinotte says.
“I’ve had situations where we can’t find the witnesses. If you do your own will and your neighbours are the witnesses, but you live another 30 years and the witnesses move away or die, there’s no way to have that affidavit prepared because we can’t find the witnesses,” she says.
“Most law firms will swear an affidavit of execution at the time of signing. The odd time when they don’t, usually we can find the lawyer or staff person, even if they’re retired.”
Allinotte says it’s much easier for someone to challenge a do-it-yourself will in court than a document drafted by legal counsel.
In addition to potential problems with witnesses, she says, “they can challenge it by saying the person who made the will didn’t have capacity or they were under undue influence from someone else, and we wouldn’t have any evidence to counter that necessarily. You’d have family evidence and perhaps some medical evidence, but you wouldn’t have the notes that the lawyer made contemporaneously while meeting with the testator.
“Yes, it can be held up in court. But it would be an uphill battle if someone wants to challenge it.”