Do I need a Lawyer To Make a Will?

Canadian radio and T.V. are full of ads these days advocating "self help Will kits" which boast that one can make his or her own Will without the aid of a lawyer. The ads suggest individuals can save hundreds of dollars in legal fees. While individuals making their own Wills will save legal fees, it is not so clear whether their beneficiaries will be so lucky.

A recent decision of the Ontario Divisional Court underscores the dangers and pitfalls involved in making a Will without the assistance of a lawyer. In a case called Finucci, the issue was the interpretation of a Will drafted by a travel agent on behalf of a friend using a stationer's form filled in by typewriting. The Will provided for the deceased's wife to receive the residue of the estate for her own use absolutely. However, the Will went on in the next paragraph to state that at the time of the wife's death, half of the estate would go to the deceased's nephews and nieces. Obviously, this was a contradiction that had to be resolved. At first instance at trial, the trial judge held that the intention of the testator was that his wife would inherit his entire estate. The nieces and nephews appealed to the Divisional Court and that Court held that the wife only had a life estate and that the remainder would go to the nieces and nephews on her death.

Therefore, the initial decision by the deceased not to retain a lawyer had resulted in his relatively modest estate being eaten up by legal fees as both the unsuccessful and successful parties had their legal fees paid out of the estate.

In this case the decision to save a few hundred dollars in legal fees cost the estate and beneciaries tens of thousands of dollars.

There are other pit-falls that may arise if you do not have a lawyer prepare the Will:

• The Will may be invalid if it is not executed properly;
• Disappointed family members who try to challenge the Will may succeed because there will be no lawyer to give evidence on the mental capacity and competence of the deceased to make the Will;

It is a mistake to look at the drafting of a Will as simply filling out forms. Even if you do not require a sophisticated estate plan, an experienced lawyer can bring to your attention relevant issues and planning opportunities thus avoiding bitter and costly disputes over your Will. For example, I recently prepared a Will for a client. The client intended to leave various legacies to her family members and friends. When reviewing her assets, it became apparent that she had structured her affairs in such a way that she owned everything including bank accounts and investments in joint tenancy with her sons. When I indicated to her that the assets would pass outside of her estate and that there may not be sufficient assets to cover the legacies, the client thanked me and quickly made arrangements to change the ownership of some of her assets to her name alone.

Do you need a lawyer to make a Will? Ask your beneficiaries.