Q: Can I write my own will? Is it OK for me to use a will kit?
A: A will is indeed a personal matter and I understand the desire to do it yourself without the intervention of a lawyer or paralegal. As I’ve pointed out before, there is no requirement that a will be made by a legal professional, and in many provinces, including all three on the Prairies, wills solely in one’s handwriting are valid.
For the person wanting to do it herself and wanting assistance, there are will kits ranging from blank forms to sophisticated computer programs that will ask a range of questions and help design your will.
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Such kits do have their critics.
“It is beyond comprehension that a person would not spend the relatively few dollars a properly drawn will costs to have the peace of mind that his or her wishes are carried out as envisioned,” wrote Vernon, B.C., lawyer Gerry Laarakker in the Globe and Mail. “These do-it-yourself kits will keep future generations of estate litigation lawyers gainfully employed as disappointed beneficiaries jostle at the courtroom door,” he continued.
In the Vaillancourt estate case, the issue was the validity of a will prepared with a kit. In her will, V left her car to a friend and the balance of her estate equally to her sister and various nieces and nephews. No one was contesting the will. But the executor asked the court to rule on its validity because it had not been properly witnessed. The will was prepared while V was in hospital. The two witnesses were hospital workers, but neither was present when the deceased signed her will. The law requires both witnesses to be present and sign when the deceased signs.
The judge was critical of the will.
“I do not know who prepares these will forms but it is unfortunate that people should rely on them,” he said.
He noted the will did not authorize the executor to pay debts or to sell property if required.
Nevertheless, the court found that there was no mental incapacity on the part of the deceased, that she did sign the will and it did represent her wishes. Under the circumstances, the judge ruled that New Brunswick law allowed him to waive the technical requirements of the law and declared the will valid.
Costly exercise
A similar situation arose in a Newfoundland case, the Smith estate. In that case too, the testator had purchased a will kit and filled out the form in his own handwriting. The crux of his will left all property to his wife, and if she was dead, divided the balance between his children. There was no dispute among the children as to the will itself. At issue was whether this constituted a valid will.
The judge found that a court should try to find a will valid if possible. The judge further found that the handwritten portions were sufficiently clear that they alone without the printed part could be deemed a will.
While the wills in the two examples were found valid, it took time and cost of a court application to make that determination. A good will is one where you don’t have to go to court to find out if it is legal. While visiting a lawyer will be more expensive than a will kit, for peace of mind I do recommend seeing a lawyer. If a mistake is made in a handwritten will, it is impossible to correct.
What if a lawyer makes a mistake? Saskatchewan’s court of appeal has ruled that beneficiaries can sue a lawyer who improperly drafted a will.
Nevertheless, will kits can serve a useful purpose. They can be a good and inexpensive way to educate yourself about wills and think about your estate. Further, there may be simple situations (no children, no debts, no special requests and everything going to the spouse) where a will kit might be sufficient.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
