There are a variety of free and low-cost “draft your own Will”, Will-making kits, (“Will kits”) and templates available that claim to provide an easy path for an individual to draft his or her own Will. For some, these kits and templates are seen as a way to achieve the security of an enforceable Will without what can be perceived as the expensive and unnecessary help of a lawyer.
While a kit or template may be effective for the most basic and straightforward estate planning, they are very much an unstable legal structure to place any trust in. Think of a Will like a legal bridge, built for the express purpose of helping the Executor, friends, and family of the deceased (or Testator), cross a ravine after the Testator has passed away. There are lawyers who only practice estate law specifically because of the specialised language required to build a Will that will take the Executor safely across the ravine to where the Testator intended to go. So, consider legal terms like “beneficiary”, “residue”, “bequest”, and “divisee” as the pillars that the Testator and lawyer choose as the basic framework of the Will. This framework is then connected together with doctrines like cy-près, intent of the Testator, per stirpes, and others to ensure that the Executor is not forced to blindly play “connect-the-dots” without any clear indication of what the deceased intended.
Aside from terms and phrases that clearly hold legal implications, it is also important to remember that terms and phrases that make common sense in modern language may have other specific meanings in law. Perhaps the most famous of these words is “reasonable”.
Given the above, choosing to use a Will kit instead of an estate planning lawyer places a great deal of trust in the functional equivalent of legal Mad Libs.
There are three cases referring to the use of Will kits that have been decided in Alberta within the last 15 years. Below is a brief look at some of the structural challenges where a Will kit was used.
In Serdahely (Estate of), 2005 ABQB 214, a Last Will and Testament prepared by a Testator with her lawyer was challenged by an earlier Holographic Will, allegedly prepared exclusively by the Testator without the help or input of a second lawyer. The Holograph Will in this case was not found to be valid, although Alberta courts do still accept some Holograph Wills. Holograph Wills are Wills that are made wholly in the Testator’s handwriting, and signed by him or her. Although a Holograph Will may be appropriate in some circumstances, it is important to note that a Will provided by a Wills kit is not a Holograph Will. Any template, in fact, is not a Holograph Will as a template implies that the Testator has not written the Will by hand from start to finish. Further, many Will kits imitate the full witness and signing procedures of a Last Will and Testament at the bottom of the document. Under s. 16 of the Wills and Successions Act, a Holograph Will does not require a witness, or any other formality aside from the signature of the Testator. This is a special consideration extended only to Holograph Wills, and is not also extended to Will kits or templates specifically because Will kits and templates imitate full signing procedures. By qualifying as neither a Holograph Will nor a Last Will and Testament drafted by an estate planning lawyer, Will kits and templates exist in a legal gray area that are doubly at risk of being found invalid.
Commentary: The structural challenge in Sardahely was that two Wills had been created separately, and both were argued to be the true Will of the Testator. Earlier Wills are displaced by later, valid Wills, and that is exactly what happened in this case. The lawyer responsible for drafting the Testator’s Last Will and Testament assessed the Testator’s capacity thoroughly, took clear instructions, and was able to account for a variety of scenarios the could have arisen following the Testator’s passing. The Holograph Will was an earlier document, and so was replaced by the Last Will and Testament. By maintaining a relationship with a single firm or estate planning lawyer, it is less likely that your Will will be challenged if you need to tweak, update, or restructure how your property is distributed after death.
In M.E.B. (Estate of) v. O.B. (Dependent Adult), 2007 ABQB an unmarried couple cohabitated with their young children, and cared jointly for M.E.B.’s mother. M.E.B.’s mother was terminally ill, and the couple regularly took on significant responsibilities for her personal hygiene, comfort, and safety as her capacity to care for herself waned. Evidence introduced in the case indicated that when M.E.B. and his partner brought home a Will kit for M.E.B.’s mother, there was no malicious intent in taking her instructions to fill out the document or in helping her to sign it. Unfortunately, the Will produced was later found to be invalid due to a misunderstanding on the part of M.E.B. and his partner regarding who held what percent of title to the home in which they all lived. The case was further complicated when M.E.B. predeceased his mother, and did not himself hold a valid Will.
Commentary: The structural challenge in M.E.B. was that despite a close relationship, it was not immediately clear to friends and family what legal rights the Testator held to the property she shared with her son and his family. It can be hard to catch our own blind spots, and that is a main reason to seek the help of an estate planning lawyer when you begin planning your estate.
In Pender v O’Connor, 2014 ABQB 564, the Testator had a fully prepared and executed a Last Will and Testament, which she had made with a lawyer before falling ill. She later prepared a Will from a Will kit in the week preceding her death. There were suspicious circumstances surrounding the second Will in that the Testator’s writing was only present in the form of initials, and her signature on the last page. All other writing to fill in the blanks of the Will kit document was completed by another family member. The court did not find the second Will valid, in no small part due to the amount of medication the Testator was taking at the time the second Will was drafted. The court was concerned that a person who was heavily medicated and near death following major surgery did not have the necessary capacity to understand the significance of drafting a second Will.
Commentary: The greatest structural challenge in Pender was that the court did not have a person present at the drafting of the second Will who was able to reliably assess the Testator’s capacity. Assessing the capacity of a Testator is part of a good estate lawyer’s standard checklist, and it is not unusual for estate lawyers to keep notes and ask specific questions in order to satisfy a court as to a person’s capacity should questions ever arise. A Will kit cannot provide this objective judgment call.
If you, a friend, or a loved one has estate planning questions, feel free to contact DBH Law. Our experienced legal team looks forward to the opportunity to assist you in building a durable Will, able to safely navigate ravines of many shapes and sizes.