If you watched much television in Canada in the 1990s, you likely remember the commercials for the Canadian legal will kit. The ads usually featured a senior couple at their dining room table, touting the benefits of how easy it was to make their own will right in their own home, and how the kits could be purchased from any local drug store.
Today, those paper kits have usually been replaced by online services that promise to make the will-making process just as quick, and just as easy. These services may be well-intentioned, but there’s a problem.
When it comes to making a will, you often ‘don’t know what you don’t know.’ While you may think that your estate is fairly straightforward, any person’s wishes are often far more complex, and require some proper legal strategy in order to be carried out properly after they’re gone.
So why is it so important to see a wills and estates lawyer in order to ‘get your affairs in order’?
Every word matters
When drafting a will, the courts have ruled in recent decades that the language that is used must be incredibly precise, with almost nothing left to chance. Remember, your will is usually only reviewed after you’re gone, so it is nearly impossible for a court to guess at your intentions or to try and put words in your mouth.
That’s why when it comes to wills, the courts have ruled that the language used is critically important, and must be up to date with the latest legal standards. Will kits are only updated periodically, and online services may not be up-to-date with the latest case law. Don’t let your last wishes get lost because you didn’t word things properly.
Along with your will, a lawyer will also carefully review your Powers of Attorney for property, and for personal care. The first deals with who will control your assets if you are still alive but can no longer care for them yourself, such as due to illness or injury. The second involves who will make medical decisions on your behalf in those situations in the manner that you would have wanted. It’s important to have a clear understanding of what goes into those documents so that you can be sure that they actually align with your wishes.
Family fights make things complicated
Families are complicated, and this is especially true when it comes to money. Whether there’s a significant amount of money in a person’s estate, or little money but other assets that may be of value, it becomes far too easy for disputes to tear a family apart. Not only does this happen after someone passes, but can often start during a person’s lifetime.
It’s not uncommon to have siblings that no longer speak to each other, or sadly a separation between parents and their children. In these cases, it’s not uncommon for someone to wish that part of their family inherits less, or even none, of their estate. For these wishes to be carried out, they need to be written incredibly carefully so that they express what you want without any ounce of doubt, otherwise they may not be followed.
For those who die without a will, there are a series of laws called ‘intestacy rules’ which determine the order of who inherits your estate (spouse, children, parents, siblings, etc.) In order to override those rules applying, your will must be crystal clear in outlining your wishes to exclude anyone – otherwise if challenged it can be thrown out by a court and those intestacy rules then apply.
Trusts can be the answer
If you have a spouse or partner and grown children, it may seem simple enough to divide your estate between them accordingly, not dissimilar to whatever pattern the intestacy rules would already follow. Yet what happens if you die while still having minor children? What happens if you have a child with a severe disability, or a sibling who cannot work, or someone else in your life who you want to provide for after you’re gone?
In these cases you may want to look at setting up a trust. Trusts are effectively setting up a pot of money that someone else watches over in order to benefit a third person. In the case of a disabled child, for example, a lawyer can help set up what is known as a Henson Trust, which is monitored by a designated individual in order for them to provide money from the trust to that child in need. This can ensure that your loved one is protected and cared for long after you are no longer here.
There are other reasons to use a wills lawyer as well. Not only do lawyers know the law well, but they take a strategic approach to drafting your will and all associated documents. While your wishes may be clear, a lawyer can prompt you to think of second or even third backup options, in case part of your plan does not work out as intended.
While it seems like a small point, the proper signatures are crucially important. Lucas Stephen Harrison III may go by Luke Harrison for most of their lives, but if they don’t sign it properly or consistently throughout then it opens room for debate over that will later on. Similarly witness signatures are critical – without witnesses signing in the right places, a will can be easily invalidated.
Lastly, a lawyer’s job is to assess their client’s capacity at the time that they are making a will. For a will to be valid, an individual needs to be healthy and mentally well enough to give instructions. This is becoming a far more common scenario with an ageing population, and too often it calls wills into question. If the person is not well enough, a lawyer will flag this, and figure out how to proceed with the family accordingly.
When you need your wills done, call a professional. Will Good (yes, that really is his name) has been drafting wills for clients throughout the Windsor-Essex and Chatham-Kent regions, and is happy to help create a document that reflects your true wishes. Contact Good Law today to set up a consultation.