My recent column on wills has generated a lot of questions about will kits that you can purchase over the TV, over the Internet or at your local stationers. Pennywise consumers see a price tag of $29.95 for a “valid” will as irresistible in the face of having to find a lawyer, meet with them, review the drafted will and then pay $200+ for the service. However, there are some problems:
1. If the kits are the fill-in-the-blank variety, they are invalid in Ontario and you will be deemed to have passed away intestate (without a will).
2. You must have your properly formatted will witnessed by two impartial witness who are not beneficiaries under the will; and, there must be an affidavit of execution sworn before Commissioner of Oaths, executed by one of the witness (this will generally lead you to a lawyer’s office regardless) in order for your will to be processed upon your death.
3. There are complex legal rules that apply to all wills, such as the Rule of Perpetuities (you can’t stop the vesting of a gift with a beneficiary for more than 21 years after the date of your death), which only a seasoned practitioner would be able to avoid if you decided to do some creative drafting.
4. The laws of trusts (a will is a testamentary trust) have very distinctive and sometimes obscure rules that only a lawyer would know and need to be adhered to: the absence of which could lead to intestacy.
5. Most people say they don’t really have any substantial assets to direct but how many of us have children with no appointed guardians (the will is the document where this is outlined). What if both intestate parents perish in a car accident? The children would most likely end up with the next of kin instead of the trusted brother or lifelong friend.
6. For those people who fall bellow the benchmark of $50,000 in assets but still have several thousand dollars in savings and investments, it can often be near to impossible for a bank to unfreeze accounts once they have been notified the person has passed away.
7. Seeking the advice of a lawyer to draft and properly execute your Last Will and Testament provides a much larger degree of certainty that your final wishes will be followed (although lawyers carry errors and omissions insurance in case they have drafted the will faultily).