Will Kits – A Ticking Time Bomb?

With the proliferation of do-it yourself books, the information highway and our better educated society, it is little wonder that many people are taking on tasks that our parents would never have dreamed of doing without the assistance of a professional.

And so the popularity and proliferation of the will kit. On the face of it, these do-it-yourself documents that you can purchase for as little as eleven dollars appear to be like gifts from heaven. Unfortunately, things are not always what they appear to be.

I have been practising law since 1973. In my practice, I have reviewed many homemade wills and wills prepared with will kits currently on the market. In my view, they are ticking time bombs that can leave a legacy of trouble. Don’t just take my word for it. A legal text entitled Mistakes in wills in Canada echoes my opinion. In relation to will forms, it states, “Due to the rigidity of the form, its technical and often inexplicable phraseology as well as its excessive, meaningless verbiage, the (form)…can spell disaster in the hands of the untrained layperson”.

Most kits contain general disclaimers and warnings that are often overlooked by the do-it-yourselr. Some kits claim that they are only to be used in simple situations. What situation is simple? The term is not defined. Other kits do not warrant the validity of the will not do they provide any guidance as to what life situation the will kit applies to. Experience has shown that if you are married with children, separated, divorces, in a second marriage, disinheriting children, have disabled children or living common law, will kits just don’t cut it.

Many will kits are not made in Ontario and lack vital information that could put an estate at risk. For example, Ontario law gives spouses and dependents special rights that must be given consideration when preparing a will. In addition, to protect a child’s inheritance in the event of matrimonial dispute it is vital that a will contain what is commonly referred to as a “Family Law Act Clause.” This clause ensures that a son-on-law or daughter-in-law will not benefit from a child’s inheritance This clause is not found in most of the will kits that I have reviewed. I include this clause in every will I prepare.

Often, these kits do not establish trusts for children beyond the age of 18. As a result, children inherit at this age regardless of their level of maturity. A professionally drafted will can establish a trust for a child to take at a higher age and allows the executor of the will to access the trust fund for the child’s education, medical needs, etc.

Not only should a will se out who will inherit, but it must give the executor and trustee that powers necessary to deal with the assets. Many of these kits fall short in this area and require the executor to go to court to obtain these powers. The result is unnecessary delay and increased costs.

The old adages, penny wise pound foolish and buyer beware, really ring true when it comes to will kits.

Barry M. Fish is the senior partner of the law firm Fish & Associates (Yonge north of Steeles). His firm, which focuses in wills and estate planning, is please to offer readers a free will consultation or a free will review for those who have a will. To reach Fish & Associates, please call (905) 881-1500 or toll free 1-888-965-1500.