Do I Need a Lawyer To Draft my Will?

May 11, 2017

In my last entry, I wrote about a common question for a Wills lawyer: “Should I have a Will?”  A frequent follow-up to that question is “Well, do I need a lawyer to prepare my Will?”  My answer: “Technically, no.  But you should hire one anyway.” 

There are a number of important reasons why you should retain a lawyer draft your Will.  For example:

  1. Although there is no requirement in Ontario that a lawyer draft a Will in order for that Will to be valid, there are some very specific rules that do need to be followed when signing a Will.  If these rules (which deal with the number of witnesses, how the Will is signed, and so forth) aren’t followed precisely, the Will is not valid.  Something as simple as a witness to the Will leaving the room while the other witness signs can sink the Will.  Lawyers who specialize in estate planning generally have a regular ceremony they follow each and every time a client signs a Will.  This ceremony ensures that none of the technical rules are missed.
  2. The wording used in a Will is extremely important.  Wills that contain mistakes, that are ambiguous, that attempt to make gifts that aren’t possible, or that contain contradictions can lead to issues regarding how the Will is to be interpreted and how the estate administered.  Depending on the size of the estate, there can be real incentive to argue about these issues after death, and perhaps ultimately end up in court.  Retaining a lawyer doesn’t guarantee there won’t be arguments after death, but it reduces the chances considerably, particularly if the lawyer is a specialist in this area.
  3. Most lawyers who specialize in estate planning keep a comprehensive file regarding their discussions with a client.  This file can be extremely important after the client’s death if a disappointed beneficiary questions the deceased’s mental capacity, or alleges that the deceased was unduly influenced by a family member.  In that scenario, the lawyer’s file can help ensure the Will is respected and the deceased’s wishes honoured.
  4. For any given client, there may be more sophisticated estate planning opportunities that only an experienced lawyer will be able to explain and implement.  The techniques available to address these opportunities can produce real income tax and probate fee savings.  Similarly, an experienced Wills lawyer can provide estate planning solutions that address complicated family situations, the most common of which is a blended family. 

So yes, you should retain a lawyer to help you with your Will.  Don’t rely on your own intelligence.  Don’t rely on a Will kit.  Don’t rely on the Internet. 

After someone has died, I have not once heard anyone say “I wish [the deceased] hadn’t hired a lawyer to help him with his Will.  He should have saved a few bucks and just done it himself.”  What I do hear from time to time is words to the effect of “Why didn’t [the Deceased] just hire a lawyer to do his Will?  Things would have been so much easier.”

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