Legalese_08-29

Jeff Green | Jul 24, 2008

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Some years ago my husband, armed with a self-help book, tried his hand at some electrical wiring. On the plus side, the house didn’t burn down. On the negative side, he had to endure the laughter of an amused electrician and friend who found it hysterically funny that anyone could “forget” about something as basic as a ground wire.

The error was easily fixed. The joke so good that no bill was ever forthcoming.

People who plunge into the task of organizing their affairs with a “lawyer approved” Will kit remind me of my husband’s attempt at being an electrician. Unfortunately, if the tricky task of drafting a Will is not handled properly, there may be no second chance. When family members and executors attempt to interpret such Wills, the author is not around to clear up any confusion. Where legal requirements have not been met, or if the confusion ends up in a family feud, the legal fees are likely to be significant and in many cases can eat up a large portion of any inheritance.

Unlike our electrician friend, lawyers tend not to have any sense of humour about do-it-yourself projects gone awry.

This is not to say that some people cannot successfully use one of the several Will kits now available. But as in the case of any other highly specialized task, people ought to think carefully about seeking professional advice before striking out on their own.

Wills are tremendously important documents and they are also extremely complicated. Making even a “simple” Will is not really a very simple task: the law has strict requirements when dealing with such testamentary documents regardless of the size of the estate. In Ontario only lawyers and not paralegals are authorized to prepare Wills for the public.

The technical legal requirements must be met. A kit should explain the necessity for two witnesses who must sign the Will in the presence of each other and the person making the Will. It should also explain that some people may not legally act as witnesses, such as a beneficiary.

The self-help kit may not point out the importance of those witnesses if the Will must be probated (a necessity if certain large assets, including real estate, make up part of the Estate). Probate is a general term describing an application to the Court requesting that a Judge find that the Will is indeed valid and that the named Executor(s) have the authority to deal with the assets. One essential piece of evidence will be an Affidavit given by one of the witnesses confirming that he or she witnessed the signing of the Will and that it was signed in the presence of the Testator with both witnesses present. The Affidavit must be sworn before a Commissioner for Taking Oaths (such as a lawyer) or a Notary Public.

If this Affidavit is not properly completed and sworn at the time of the execution of the Will, the Executor(s) may be faced with the impossible task of finding one of the witnesses many years later. If the witnesses have died, or cannot be found, it may be very difficult, and certainly very expensive, to convince a Judge as to the validity of the Will. The task will be even more difficult and expensive if a beneficiary or family member also questions its validity.

It is standard practice for lawyers to prepare the necessary Affidavit when a Will is signed and attach it to the original document, thus avoiding the problem of the missing witnesses.

This is just one potential pitfall for the unwary. There are many others that arise out of the substance of the Will. Setting up trusts for children, or designating alternative beneficiaries (in case one or more die before the person making the Will), can easily be done improperly or not at all.

Whether a problem exists with the legal technicalities, or in the actual instructions as to how to distribute the estate, the end result is the same: the wishes of the deceased may not be carried out as he or she intended when drafting the Will.

There is also the problem of how to deal with potential income tax liabilities when drafting a Will, depending upon the nature of the assets and how they are to be distributed.

Lawyers look at a Will as only one part of an “Estate Plan”. Fees for this type of work are usually very reasonable, given the importance of the task, but will certainly increase with the complexity of the estate. A few telephone calls inquiring as to fees for straight-forward Wills would be a good idea before deciding that a do-it-yourself kit is the route to follow. What you save by using a kit will certainly be lost – and then some – if the Will is not drafted or signed properly.

For those people who meet Legal Aid Ontario’s financial eligibility requirements, Rural Legal Services is able to draft Wills (and Powers of Attorney) without charge. As well, all residents of northern Frontenac and northern Lennox & Addington Counties are, welcome to call us to discuss any questions they may have about Wills and how to find a lawyer to help them if they do not qualify for further assistance from our office.