Wills and Estates

Why should I have a will?

• If you die without a will (in legal jargon, this is called “dying intestate”) the law dictates how your estate will be distributed, and your assets may pass on to people you never intended to benefit. On the other hand, if you have a will then you control how your estate will be divided.
• If you die without a will, someone whom you may never have chosen yourself could end up administering your estate. On the other hand, if you make a will, then you have control over the appointment of an executor and trustee.
• If there are minor children (under 18 years old) who may benefit from an estate, it is usual to create a trust and to appoint someone to hold their monies until they reach an age determined by you. If you do not have a will, minor beneficiaries’ shares will likely end up being administered by a government official known as the Public Guardian and Trustee (PGT).
• In larger estates, there may be compelling tax reasons for having a will.

Can I write my own will?

You can create a will in your own handwriting, and, of course, in an emergency, such a will is desirable. As well, there are do-it-yourself will kits on the market, which provide “easy to follow instructions”. However, you should carefully consider the following before you try to create your own will.

• There are very rigid rules for how wills are to be signed, and in many cases, witnessed. It is easy to misinterpret the “do-it-yourself” instructions, and an error in signing and witnessing could possibly invalidate a provision of the will, or even the entire will.
• If you want to include any special clauses in your will, your wording may not be clear enough to avoid ambiguity. These kinds of wording problems have often led to lengthy and costly court battles, which a modest estate especially cannot afford.
• In some cases, witnesses may need to swear an affidavit years later after the maker of the will has died. These witnesses can be hard to find.
• Occasionally, someone unscrupulous may try to change a homemade will to suit his or her own interest.
• The validity of a homemade will, particularly of an elderly person, may be more susceptible to attack in the courts by unhappy family members, because there is no independent witness who can testify as to the capability and intentions of the maker of the will.

Why should I have a lawyer prepare and witness the signing of my will?

• A lawyer knows the rules of signing and witnessing procedures, thus greatly reducing the risk of invalidating a will on a technical ground.
• A lawyer can word special provisions in your will, thus greatly reducing the chance of some later confusion about a client’s real intentions.
• It is often easier to track a lawyer or his other staff if a witness’s signature is needed years later.
• In taking instructions for a will, our estates lawyer will keep notes in their file regarding your intentions, and, particularly when dealing with elderly individuals, the client’s capacity to make a will. 
• Our lawyer will offer to store your will in a secure place, for safekeeping, usually at no extra cost to you.
• Our fees for preparing a simple will is very reasonable, especially when considering the importance of having a will.

So what information should I have available when I go to see a lawyer?

• You should have the name of an executor, the person charged with the responsibility of settling the affairs of your estate. This person does not need any special training, and usually the lawyer who acts for the executor will advise of his or her responsibilities throughout. However, the executor should be someone in whom you have a great deal of trust, since this person will be handling the money in your estate. It is a good idea not to appoint someone who is much older than yourself, since his or her life expectancy is shorter than yours. You should also have the name of a substitute executor in case the first one is unable or unwilling to act.
• Prepare a detailed list of your assets, even though you may consider them modest. There may be certain specific items you wish to leave to certain individuals, and these should be listed too.
• If there are any minor children, you should have available the name of someone who has agreed to be entrusted with the care and custody until they reach 18 years. Again, this person should be close to the age of yourself and/or your spouse, and preferably someone who has children of his or her own. Ask yourself the question: “Is this the person I would like to have raise my children?”
• You should have a good idea how your estate is to be divided. In dividing your estate, it is useful to think in terms of percentages or fractions, rather than specific amounts. Give some consideration, also, to alternative beneficiaries, especially where your immediate family unit could suffer a common disaster, leaving no one named to inherit your estate.