Poorly written wills can cause headaches for loved ones

Self-made wills are legal if every step is followed, but non-lawyers can create a multitude of problems for themselves

Death can be difficult and those left behind can face big decisions.

That’s where planning a proper will can make things easier for loved ones.

There is plenty of information online and plenty of resources available on will planning, but investing in professional help can make things easier and more secure, says James D. Steele, who practises estate litigation with Robertson Stromberg in Sask-atoon.

Half of Canadians over the age of 18 have nothing in place to state their wishes to their family upon their death, according to a 2018 survey by Angus Reid Institute. Only 35 percent of those surveyed not only had a will drawn up, but one that was up to date.

Also according to Angus Reid, people in the 55-plus population are more likely to have an up-to-date will compared to those 55 and younger.

Steele stresses the importance for people to have an updated will if they have any kind of property or anything in their name. As soon as someone gets a car or bank account, they should be planning what would happen to it if they passed away, he says.

“It doesn’t make sense to wait until you’re in your 50s or 60s. Anyone can die unexpectedly and (a will) is just the cheapest insurance you can have….”

Hiring a lawyer to draw up a legally sound will can cost about $500 but that is a small amount when compared to the costs of litigation if documents are not properly drawn up.

Steele remembers one instance in which an older woman drew up her will herself. After court battles, the combined total of legal fees as the family fought over the will came to around $100,000. These self-made wills are legal if every step is followed, says Steele, but there are many problems that non-lawyers can create for themselves, things like the types and number of witnesses and clauses and descriptions of assets that can cause inconsistencies.

Wills can be a point of contention with family members, says Steele. The fear of the family falling out can be a big reason why parents avoid having these conversations about what is going to happen after they die.

“I’ve seen parents not have that conversation for that reason, trying to avoid any fallout during their lives, but it makes things after their death more difficult.”

This can be incredibly hard when it comes to who is taking over the family farm and who is not, says Steele.

Steele says he has seen disputes between farming and non-farming children where the value of the land has changed between when the person had the will made and when the person passed away.

“That doesn’t mean that the will isn’t valid,” says Steele, “but it can give rise to litigation, which costs a lot of money, which can deplete the estate.”

Having difficult discussions with beneficiaries about will plans can avoid future problems.

“Once you’ve formed your plan, tell them what your plan is. When you die and they see the will, it’s harder for them to dispute it because they heard your wishes that you told them yourself.”

A person knowing what their wishes are is the hardest part of planning for their death since most people want a plan that is fair among their children while also passing on the farm to someone who wants the farm to succeed. Making sure their wishes are made legally binding is quite simple, says Steele.

“Go out and talk to a lawyer and an accountant who deals in farmland succession and just tell them what your wishes are, and work with them to give you a will that’ll give you peace of mind that, when you die, your succession will first, go exactly how you want it, and second, will minimize tax for your beneficiaries.”

This article should not be taken as tax or legal advice and readers should consult with their lawyer, accountant and other professionals before implementing any of the approaches discussed.

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