Q: I need a new will and was thinking of making one myself, using those will kits you see advertised. Is that a good idea?
A: Be cautious is the main message I’d give to anyone wanting to use a will kit.
The will kits themselves are quite good. When they first came out, some kits were sketchy on information, and others appeared to be inaccurate.
But the kits available today tend to be informative, well drafted and have been checked by lawyers to ensure they are legally accurate and dependable.
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But will kits are sort of like computers or other machinery where there’s always room for human error. If you don’t use them properly, you can end up with an invalid will.
First, you must remember that the law pertaining to wills is provincial in nature. This means that there are differences between provinces about what comprises a valid will and what formal requirements must be met. Even if you are using a kit, you must comply with these formal requirements or else your will is subject to being challenged or overturned.
In many provinces (Saskatchewan is one) holograph wills are still valid. This is a will done entirely in the handwriting of the testator, the person making the will.
A will kit is not a holograph will even if you use your own writing to fill in the blanks. A will kit must meet the same formal requirements as one drafted by a lawyer. A lot of people make that mistake. You need witnesses, a date and clear instructions, otherwise you may not have a valid will at all but may be lulled into a sense of false security because you filled out the form.
As well, many will kits leave blanks for special clauses. This leaves it entirely up to the person filling in the kit to draft these clauses. In many instances this is fine.
However, if it is a complex gift or if it conflicts with another gift elsewhere in the will, confusion may arise as to the true intentions of the person making the will.
Remember, a will is nothing more than a formal means by which the deceased person expressed his wishes, during his lifetime, about what should happen to any property he leaves behind upon death.
If there is confusion about those wishes, that portion of the will (and possibly the whole thing) can be struck down.
I recently wrote about undue influence regarding wills. There are numerous cases where an older or otherwise vulnerable person had gone to a lawyer for previous wills, but suddenly a will kit was used for the last one.
This, coupled with other factors, can lead to suspicion as to why a trusted family lawyer was aban-doned in favour of a store-bought form. It can be a factor in assessing whether the last will was valid.
People often delay making their wills. That’s understandable since it’s often the last thing you want to think about.
However, there are many reported law cases in which the deceased’s effects included a will kit, opened, maybe even started, but not completed.
It appears that people buy the kit, really mean to get at it sometime, but put it off until it’s too late. That’s certainly not the fault of the person making the will kit. Again, it’s human error.
So while there’s nothing wrong with will kits, they have to be used carefully and properly. They are not a substitute for obtaining competent legal advice from a trained professional. They are also not a substitute for drafting complex wills or clauses dealing with certain property.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in 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.
