One of the most important things anyone can do in their lifetime is protected their family and loved ones by making a will. Yet despite the importance of a well thought out will, many people go ahead and make their own ‘DIY’ will without legal advice. This is dangerous and can cost your estate a lot of money in the long run.
The experienced wills and estate planning lawyers at Rogerson Law Group have years of experience providing detailed advice to clients needing a will, and explaining how best to draft their wills. However, our contested probate team also deal with many estate disputes that directly arise out of homemade or DIY wills that have simply not worked in practice.
Most people who do their own will do so because they have recognized that they need a will, but think they do not need specialist legal advice or help. However, the rise in the number of contested wills in recent years is a salutary warning of the risks of bypassing legal advice and making your own will.
Another factor is the ease with which you can make a DIY will. In the digital age in which we live, it is possible to make a will on the internet, in addition to buying an off-the-shelf DIY kit and filling in the spaces. Though instructions are typically given, these will not properly take into account your specific personal or financial circumstances.
Some DIY will websites give assurances that the draft will be reviewed by a lawyer who can check the document for consistency and completeness. However, without knowledge of the your own circumstances, this can provide only very limited peace of mind. These kits cannot, for example, advise you on how to mitigate your potential inheritance tax liability, or the dangers of disinheriting someone you are financially supporting, or tell you that your impending divorce will render your will invalid, or that your partner will not be provided for.
What are the risks?
There are many risks attached to DIY wills, including:
- The Will may be invalid for lack of formalities: a written will must comply with strict legal requirements. It must be signed by the individual (the ‘testator’) in the presence of two independent people who must witness it. The will must not be witnessed by an executor or beneficiary, or someone married to a beneficiary under the will
- Mental Capacity: the testator must have sufficient ‘testamentary capacity’ to make a will. This includes being able to understand the nature and the effect of a will, and what would happen to the estate in the absence of a will. Many things can affect testamentary capacities, such as serious physical or mental illness, alcohol and drugs, and even extreme grief. A will made in circumstances where you lack capacity will be invalid.
- Mistake: a will can be invalid in whole or in part if there is a mistake in it. For example, an ambiguous clause could render it unworkable; or you could leave an interest in property to someone else when you do not have the strict legal right to do so
- Failing to provide for dependants: if you make a will that fails to provide adequately for someone you are financially supporting at the date of your death, that individual could make a claim against the estate on the basis that they have a ‘legitimate expectation’ of reasonable provision from your estate
- Tax mitigation: it is not easy to use a DIY will to reduce the amount of inheritance tax your estate may be liable for on your death. An expertly drafted will, on the other hand, can significantly reduce the potential tax liability, maximizing the amount of cash available for your loved ones
What should I do?
Avoid the temptation to take shortcuts because the risks are potentially serious. You could be leaving a financial mess for your grieving family to sort out – a situation you will want to avoid. If you are concerned at the risks of a DIY will and you want peace of mind that your wishes will be carried out on your death, take specialist legal advice.
Paying to have a professional will drawn up by an experienced wills and estates solicitor present a financially disastrous estate dispute for your family to cope with after you have gone.
How can we help?
We will take full instructions from you about your wealth, your finances, your family and dependants, and what your wishes are. We will advise you strategically to enable you to decide the best terms to include in your will. Only then will we draft your will, and ensure all legal formalities are complied with when you sign it.
Contact us now at firstname.lastname@example.org.
Rogerson Law Group provides wills and probate services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and associated offices in North York and Ottawa.