Will kits are inexpensive, but that may be their only redeeming quality. It can be very tempting to pick up a $30 fill-in-the-blanks Will kit rather than retaining a lawyer, but before you do, you should consider the risks involved.
A Will kit can be purchased in paper, CD ROM, or online. It will typically include a fill-in-the-blanks form of Will to write or type in information or make selections from drop-down menus.
However, just as you, your six year old nephew, and your great aunt Margaret wouldn't all wear the same sized shirt, Wills are not "one-size-fits-all." Personal factors such as where you live, being a parent, having a blended family, owning foreign property, or being married, separated, divorced, or re-married, can all affect the provisions you require in your Will. Although you may think your circumstances are simple and that you just require a "standard" or "basic" Will, such a thing doesn't really exist. Blank form Will kits tend to be oversimplified and are generally not designed to accommodate anything that is "non-standard" (something as commonplace as having minor children may be considered "non-standard").
One critical thing missing from a Will kit is legal advice. Will kits typically contain lengthy disclaimers specifying that nothing in the kit or its instructions should be considered legal advice, to absolve the manufacturer from any liability if your do-it-yourself Will ends up being invalid, being contested, or leading to litigation. Instead of legal advice, you receive a form with blanks to fill in, which can be extremely confusing and which allows for very little flexibility or customization. Unless you have a thorough understanding of current Alberta law governing estate planning, once you have completed your Will, you are unlikely to know for certain whether:
- it has been signed and witnessed correctly,
- it is based on current law and law specifically for Alberta,
- it is valid and free from ambiguity, inconsistencies, or contradictions,
- it accurately reflects your wishes,
- you have adequately provided for a spouse or any dependents, and
- it properly distributes your entire estate.
One of the reasons a person may prepare a Will is to simplify matters for family and loved ones after they have died. Although this may be your intention, an improperly drafted Will may ultimately create confusion and ambiguity. A lack of detail or incorrect wording can produce multiple interpretations of your wishes, making it difficult for your personal representative to administer your estate, or even invalidating all or parts of your Will. Improper drafting can lead to disputes and costly, time consuming litigation. Even without any conflict, misinterpretation may mean that your estate is not actually distributed according to your carefully considered plans. Advice from a Wills and Estates lawyer can provide you with confidence in knowing that your Will has been drafted and executed clearly and correctly, complies with current Alberta law, and accurately reflects your wishes.
Will kits often advertise that they are "legal", which gives a false impression that using one will consistently result in a valid Will that cannot easily be contested or challenged in court. Unfortunately, the opposite tends to be true. In addition to the problems explained above, claims are often made that do-it-yourself Wills were made under duress or undue influence, or when the testator lacked capacity. Part of a lawyer's job when assisting you with estate planning is to consider your mental capacity during discussions and interactions with you, and to watch for any indications that you have been or are being influenced by another person. A lawyer can provide valuable, independent information regarding your mental state at the time you made and signed your Will, which can be useful if it is challenged on these grounds. Using a kit, you have no proof that you had capacity to create your Will and that you were not influenced or coerced by another person.
If you are going to take the time to work on your estate planning and want to simplify matters for your loved ones after your death, it makes sense to ensure that your Will is prepared correctly. Although a Will kit may be adequate for your great aunt Margaret, it may not be right for you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
