Will prepared by lawyer may carry more weight

Q: I’ve heard a lot about will kits, or even doing up a will online. Why would I go to a lawyer and pay many times as much for the same document?

A: When you go to a lawyer you get more than the will document.

This week, I will address the issue of unexpected costs that can arise if you choose not to use a lawyer and what a lawyer can do to prevent those costs. The next column will address the important legal advice that can be provided by a lawyer.

Your last will and testament is a set of instructions on how you would like your estate to be distributed upon your death. Having a will does not guarantee that it cannot be challenged in court, which could cost your estate and the person challenging it a lot of money, even if they aren’t successful.

For example, take a fictional elderly couple from Melville, Sask., Martha and John. They are both in good health and have their wits about them.

They used to farm but have moved into town. The couple has two sons, Bob and Larry. Bob is an accountant, married with three children and lives in Regina. Larry is married with no children and rents the farm from his parents.

Larry and his wife help his parents quite a bit. He shovels their snow in the winter, mows their lawn, drives them to doctors’ appointments and his wife takes them to get groceries and medication. Bob is busy with his own family, but always makes it home for holidays and the odd visit, bringing the grandchildren.

Martha and John decide to update their will and use a will kit to save money. They’re appreciative of all the help they receive from Larry and his wife. Their old will split their estate evenly between their boys, but now they think they would like to give the farm to Larry as a way of saying thank you for everything Larry and his wife do for them.

The house in town, worth half as much as the farm, will go to Bob. They don’t have much else, and live off of the rent from the farm and their Canada Pension Plan.

Martha dies shortly after making the new will, leaving everything to John. John dies six months later.

At reading the will, Bob is upset that he isn’t receiving half of the estate. He doesn’t believe Martha and John were of sound mind when they made the wills. Bob is also concerned that Larry may have influenced them.

“Larry and his wife were always around. He just wanted the farm to himself and kept saying this and that to Mom and Dad till they changed their will to shut him up.”

Because the will was done at home without a professional, Bob might have a case in court. Even if John and Martha were of sound mind and were not influenced by Larry, it could look otherwise to a judge.

Lawyers are under an obligation to check for these issues when making a will, and the courts know this.

A lawyer who is unsure of someone’s mental capacity may even ask for a physician’s note confirming they are of sound mind. They speak to their clients alone, without any family present, to make sure that they are not being influenced by anyone.

The lawyer keeps notes on these discussions, which can be used to defend against a claim. Nothing is guaranteed, but a will prepared by a lawyer is often given more weight in court than one made at home.



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