Dying Dangerously: The Risks of Making a Homemade Will

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We’ve all seen those homemade do-it-yourself will kits at the local bookstore: “Wills Made Easy! $19.99!” Why would you ever pay a lawyer hundreds of dollars when such a cheap option is staring at you from the bookstore shelf?

Because your beneficiaries deserve better. Spending money on a will is not for your benefit. The ones who will benefit are be your spouse, your kids, your grandkids, your friends – anyone to whom you want to leave a legacy. Here are three significant risks of leaving the fate of your estate in the hands of a homemade will.

Risk #1: Your Wills Kit Is Probably Wrong

The most popular homemade wills kit on the Chapters/Indigo website was published in 2008. As of today, that’s 10 years old. Would you trust the advice of a lawyer who hasn’t stayed up to date on the law for the past decade? Who hasn’t made sure his or her skills reflect the current best practices? Because, for $20 (or free if you find an online template), that’s what you’re getting: old information. Not the best practices and outdated practices.

In 2013, BC brought in sweeping changes to our wills and estates legislation with a new act called the Wills, Estates and Succession Act. This piece of law has upended lots of old estate planning practices in BC. Note the year: 2013. That’s 5 years after the top-selling wills kit on the Indigo website was released. Add in that this wills kit is sold all over Canada (each province has its own wills laws) and you’ve got some outdated, generalized, one-size-fits-all forms that are likely incorrect and out of date.

Risk #2: You’re Leaving Your Will Vulnerable to Challenges

So, you’ve ignored risk #1 and decided to do a homemade will. Now you cross your fingers and hope that, after you die, nobody argues that your will is invalid. Some ways that your will can be challenged are:

  • you didn’t sign the will in front of two witnesses;
  • if you DID sign the will in front of two witnesses, one or both are named somewhere in the will (executor, beneficiary, guardian, etc.);
  • you did not have mental capacity when signing;
  • you made the will under duress or undue influence; or
  • you left your will open to lawsuits by disinherited kids (on this point, see my previous blog post: How Can I Write Someone Out of My Will (And, Should I)?)

Hiring a lawyer to do your will minimizes the risk of these challenges being successful. When you hire a lawyer, you’re not just hiring someone to write down your wishes. You’re also paying for your lawyer’s observations and notes. These notes are critical to ensuring that your will stands up to estate litigation.

Your lawyer’s notes help to protect your estate from claims that your will was not made properly. During your initial consult, your lawyer ensures that you know what you’re doing, you have a general idea of the value of your assets, and that nobody’s forcing you or holding a gun to your head. Your lawyer will also ensure that the witnesses to the will are valid. While, of course, you can’t completely prevent a lawsuit, the presence of your lawyer’s notes confirming capacity and free will could go a long way in helping to prevent a claim from being successful.

Risk #3: You’re Not Getting Advice When You Need It Most

Ignoring the other big risks of doing your own will – using an outdated kit and leaving your will open to challenges – the biggest risk of all, in my opinion, is that you are losing out on legal advice. While doing a will may seem straightforward, it is not simple. When you sit down with your lawyer, your lawyer will inevitably ask you questions that shift your way of thinking, or direct your mind to scenarios that you haven’t considered. While you may only write one will every 10-15 years (or, perhaps, once ever), a busy estate planning lawyer will do potentially dozens of wills every month. This means that your lawyer has essentially seen it all, and will be able to give you advice on your estate planning needs no matter how unusual or sensitive your situation. A homemade wills kit (or a free online form) isn’t going to give you any advice. And no matter how simple you think your estate planning needs are, there’s always a place for sensible, insightful legal advice for your situation. Estate planning is more than a will, and there are lots of other tools that your lawyer can help you create to accomplish your goals.

Conclusion: Invest in Your Legacy

As I hope these risks – using a bad wills kit, leaving your will vulnerable to challenges, and not getting legal advice – have shown the potential for disaster that can occur due to a homemade will. One final thought: dying with an inadequate will isn’t your problem. You won’t be here to worry about it. Instead, you’re pushing the problem to the next generation and burdening your family with all of the frustrations that come with a poorly written will. The homemade will you write could not only cost your estate thousands in legal fees and perhaps unintended probate fees, but could also create emotional turmoil amongst your surviving family members as they struggle to comprehend your final wishes.

We’re in the business of avoiding that messiness and helping you achieve your goals. Please give us a call at 604-465-9993, or email me directly at jnay@beckerlawyers.ca, if you’d like to schedule a free consultation to talk about your estate planning needs.

How Can I Write Someone Out of My Will (and, Should I)?

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Writing someone out of your will is not usually a pleasant topic of conversation. Yet, in my dealings with estate planning clients, it’s not all that uncommon of a request – usually, parents are asking about either cutting a child out of their will entirely, or giving them a share that’s less than what their siblings are getting.

If only the law in BC were that simple, however. Our legislation (the Wills Estates and Successions Act) states that your spouse and your children – even your independent, adult children – have the right to sue your estate if they feel like they have not been provided for “adequately”. What if, for whatever reason, you don’t want one of your children to get a share of your estate when you die? How can you prevent that child from suing your estate? The short answer is: you can’t. But there are ways to reduce the risk of messy estate litigation. I’m going to touch on four ways to give money unequally to your children.

Strategy #1: Utilizing Joint Tenancies

The first strategy to consider when dividing your estate unequally is to put other names on assets you own. For example: real property, bank accounts, and vehicles. If someone else owns an asset with you, when you die, that asset will become the property of the surviving person on the title and won’t become part of your estate. Simple, right?

Beware, however, that a legal principle called the “presumption of resulting trust” kicks in when adding an adult (and mentally capable) child on to a property, bank account, or any other asset that can be owned by multiple people at once. This legal principle states that, unless the child can prove that this is a true joint asset that they use and enjoy, they are presumed to be holding the asset in trust for your estate. In other words, the child does not actually own anything – they  are simply keeping the home (or money, or car) safe for your estate. The asset then gets distributed as per the instructions in your will. While using joint tenancies may work, if a disgruntled child wants to fight it, they may have the law on their side.

Strategy #2: Set Up a Trust

The second strategy for dividing your assets unequally is to transfer your assets into a trust while you’re alive. A trust is essentially a document that states that a certain person (the “trustee”) is holds one or more assets in trust for the benefit of one or more people (the “beneficiaries”). Because the assets formerly owned by you are now owned by the trust, they don’t fall into your “estate”, meaning that they are not exposed in a potential estate lawsuit. Unlike joint tenancies, in which you remain as an owner, when you set up a trust you actually transfer ownership of an asset to a trust.

Don’t rush into trusts, however, as there are lots of legal and tax-based consequences. My policy is to urge clients to talk to an accountant before setting up a trust. I don’t give tax advice, ever.

Strategy #3: Name Beneficiaries Where You Can

Many people who find themselves wanting to cut a child out of their will don’t realize that, for any investment accounts with beneficiaries – RRSPs, TFSAs, etc. – as long as there is a named beneficiary (other than the estate), this money can go to anyone the person wants. Assets with named beneficiaries do not go into “the estate” upon death, which, in turn, means that a child cannot sue for a share of that asset. Unlike joint tenancies, which can be risky, naming a beneficiary on an account is a solid way to get money to someone while minimizing the risk of a lawsuit.

Strategy #4: Give Away Your Money While You’re Alive 

The final strategy for cutting someone out of a will is to simply give away your assets while you’re still alive. Obviously, this strategy isn’t always the answer and is usually more suitable for someone already planning for their passing and getting their affairs in order. But, the simple fact is that, the less money in an estate, the less worthwhile it is for a disinherited child to sue.

Should You Cut Someone Out of Your Will?

There are ways to disinherit a child. But, should you? Aside from the legal risks to your estate, bear in mind the potential strains on your survivors.

Consider this scenario: a will-maker (“WM” for short) has three adult children, one of whom is estranged from WM, but still speaks to his siblings. WM names one of the two other children as his executor. WM decides not to give the estranged child a share of his estate, despite his lawyer’s warning about the risk of a lawsuit.

WM eventually passes away. Estranged child is angry about being cut out, and decides to sue the estate. Suing “the estate”, however, really means that the estranged child is suing the executor child. Now, two of WM’s children are in a legal battle over WM’s estate. So, before you decide to take the drastic step of cutting someone out of your will, consider the lasting impact your decision will have after you’re no longer around.

Conclusion

 As I tell clients who ask me about disinheriting a child: it’s your money, and you’re entitled to do whatever you wish with it. Some wishes are riskier than others, however. While there are strategies to minimize the risk of a lawsuit against your estate – utilizing joint tenancies, holding assets through a trust, naming beneficiaries, and giving away your money while you’re still alive – the only way to eliminate the risk of a lawsuit is to give more-or-less equally to all of you children, or at least equally enough so that a lawsuit isn’t worth the time and money. (And, since I’m asked all the time: no, you can’t just give your child $1 and call it a day.)

No matter what you want to do, make sure that you talk to a lawyer first. Navigating this area of law without a lawyer is like walking through an active minefield with your eyes closed. As I’ve discussed, there are options, but you need to be careful and be aware of the risks of cutting a child (or spouse) out of your will.