All About Estates

To DIY Or Not To DIY

Today’s blog is being brought to you by guest blogger, Jennifer Campbell, a law clerk in the Private Client Services group of Fasken LLP.

I have been following the #MoneyMasterClass hosted by Gail Vaz-Oxlade, the former TV host of “Til Debt Do Us Part”, on Twitter since January 1, 2020.  Gail has provided some great tips about budgeting and cutting down on unnecessary expenses that I’ve found quite helpful.  This month, Gail has been focused on educating her followers about the importance of making sure they have a Will in place.  One follower commented about picking up a legal will kit to avoid paying lawyer fees.  This immediately had me cringe and got me thinking about Do-It-Yourself Will Kits (the “DIY Will”).

We certainly saw an increase in clients revisiting their wills and estate plans as a result of COVID-19.  I’m sure there are individuals out there who turned to the trusted old DIY Will that can be purchased at Staples or online through Amazon in a mad scramble to get a will in place.

Yes, I agree that there are circumstances in which a legal will kit would make sense:

  • your assets are basic;
  • you don’t have any children;
  • you don’t have any dependents; and/or
  • budgetary constraints make lawyer fees unaffordable.

However, in most cases, where an individual has moderate assets and children, a DIY Will would not be the option that I would recommend.

Let’s examine some of the issues with these DIY Will kits:

  • the clauses are too simple and basic:
    • they don’t provide for trusts for beneficiaries (or properly drafted trusts);
    • they don’t deal with circumstances where the individual might have a beneficiary who is under a disability;
    • they don’t deal with blended family situations;
  • the individual completing the DIY Will could misunderstand terminology used or the instructions, with the result that their wishes will be incorrectly reflected;
  • administration of the estate can entail additional costs if the DIY Will is not completed properly:
    • the individual might not appreciate the potential claims a spouse or a dependent who has been disinherited might have against their estate;
    • the individual might not appreciate what it means if a beneficiary acts as a witness to the execution of the DIY Will; and
    • the individual might not appreciate that if the DIY Will needs to be probated on their death, an affidavit of execution by one of the witnesses will be required, which if there are issues tracking down the witnesses, will increase the expenses to the estate;
  • if the DIY Will is prepared before marriage, the individual might not appreciate that on marriage, the DIY Will is automatically revoked, meaning that, in the absence of executing a new will, he or she will die intestate;
  • there is likely a tendency for the individual who has executed the DIY Will to feel that it has been “checked off their list” and then never revisit it again. We all know, circumstances change and what the individual wants now or the assets they hold today, may be different 5, 10 or even 30 years from now;
  • what happens if the individual lacks capacity and executes the will – this likely will lead to litigation when the individual dies; and
  • proper planning opportunities are overlooked, such as ensuring beneficiary designations are properly dealt with or attending to the preparation of multiple wills, as an example, where the individual owns a business.

This list, by no means, is exhaustive, but is meant to highlight some of the more important cautions that should be borne in mind when using a DIY Will kit.

I like to use this analogy – you wouldn’t typically forego home insurance because of its expense, so why would you leave your estate plan to a DIY Will that could, in the future, ultimately be more costly to your estate and cause your beneficiaries potential stress and disappointment. I like to think of a properly drafted Will as protection for your loved ones after you’ve gone. If you only ever prepare one Will in your lifetime, it is important to ensure  that it is the best that it can be under the circumstances.

About Maureen Berry
Maureen Berry is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Maureen’s practice is focused on wills, estate planning, domestic and international trusts, private corporation taxation, and executive compensation. Maureen also advises charities and non-profit organizations. Working with Canadian and international families, firms, corporations and charitable organizations, she provides advice on all aspects of private client matters. She is a leading expert in the fields of tax law and estate planning. As an Adjunct Professor at Osgoode Hall Law School, she teaches Advanced Estate Planning. Maureen has previously taught corporate tax and international tax at the University of Toronto and Western University, along with the Bar Admission course for up-and-coming lawyers.

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