Estate planning is an important part of your future and your family’s wellbeing. Estate planning can help reduce the amount of tax/fees an estate may pay and can aid to avoid potential legal claims, like wills variation claims.
Since I started practicing law I have come across several homemade wills. Most times the homemade will does not meet the standard requirements for a valid will or the deceased added language within their will that impacts the executor’s ability to manage the estate. As homemade wills are becoming more popular my goal is to help people understand the pros and cons of making a homemade will.
- Homemade wills are cheap
- Do it yourself kits usually cover the basics for making a will
- As long as it conforms to the legal requirements of the Wills Estate and Succession Act (“WESA”) they are technically a legally binding document
Cheap. The main benefit to a homemade will is that you will spend less money making the will than you would if you hired a lawyer.
Legal. Making a homemade will is legal. As long as you conform to the legal requirements set out in the WESA, the homemade will should be legal.
Covers the Basics. If you are using a do-it-yourself kit the will should cover the basics. For example, it should include clauses to appoint an executor, having a space for distributing specific gifts and space to distribute the remainder of your assets, and having a guardianship clause.
- Your homemade will may have unintended consequences which will result in greater costs in the long run.
Lawyers help with more than preparing your will. They discuss the nature of your assets and try to determine strategies for you to avoid unnecessary costs in the future. In my experience, most homemade wills have several unintended consequences. It is important that you understand that a will is a specific document, carefully worded to fulfill the intention of the will-maker, while still being prepared in the confines of the law. When using a homemade will, you are skipping the legal advice step and taking the risk that the document might not conform with the law in British Columbia.
I have highlighted some examples of the most common unintended consequences:
- Missing the specific formalities required when making a will that is set out in WESA. If these formalities are not followed, an application must be made in front of a master or judge of the Supreme Court of British Columbia to remedy the homemade will. As I am sure you can imagine, the cost of this application generally exceeds the cost to have your will made by a professional.
- Not adding alternate beneficiaries. If the beneficiary does not survive the will-maker their assets are generally divided in accordance with WESA. WESA may not divide the assets as you intended.
- Failing to consider a will maker’s obligations to their spouse and children. It is not uncommon for the homemade will to be varied by the spouse or children because family dynamics are difficult. As lawyers regularly advise clients we have developed ways to lessen the impact of a wills variation claim.
Failing to appropriately structure your estate. It is common when people create homemade wills that their beneficiaries are forced to go through the probate procedure more than once. The will-maker likely did not consider how their assets were structured forcing an executor to proceed with a probate application for a very small estate.
Although homemade wills can work, it has been in my experience that most homemade wills will lead to additional costs. You may save money during your lifetime but you place a greater burden on your executor and the funds left for your family. If you are considering making a will our Estate Planning Team would be happy to explore your circumstances and help you with your estate planning needs.
For more information, please contact any member of our Estate Planning Team.