Leaving behind a home? Do not use a will kit
When the time comes to make a last will to dispose of real estate, bank accounts, investments and other assets, it’s very easy to fall prey to the promoters of cheap “legal will kits” and download a fill-inthe-blanks form.
Experience has shown, however, that the use of will kits is not only risky but is often the source of expensive litigation while lawyers and judges try to piece together what a will should have said had it been properly drafted.
The litigation surrounding the 2003 will of Pauline Rudling is a classic example of the risks of using a will kit.
In her will, Rudling bequeathed her two properties on Shaw Street in Toronto to her two sons, one house to each.
The will did not make clear whether capital gains taxes and estate expenses would be shared between her sons or charged against the taxable house bequeathed to only one son.
Whatever money Rudling saved by using a will kit instead of a lawyer wound up costing her sons as much as six figures in legal fees for four court hearings, including an eightday trial and a trip to the Court of Appeal.
The Vaillancourt family in New Brunswick found out the hard way how will kits can result in problems. In 1999, Cecile Vaillancourt signed a will on a Canadian Legal Will Kit form.
The will was not properly drafted, and not properly signed or witnessed. The typical clause transferring the property to the executors was missing.
So was a clause allowing the executors to liquidate and sell the estate assets. And there was no instruction for the executors to pay the debts of the estate.
When Vaillancourt died, two of her executors had to pay a lawyer to get a judge to fix the mistakes.
In her decision on the case, Justice Nicole Angers wrote, “I do not know who prepares these will forms but it is unfortunate that people should rely on them.”
Over the years, will kits have produced a bonanza of work and fees for lawyers trying to sort out the mess caused by these time bombs.
A legal database search of Canadian and American court cases using the phrase “will kit” yields hundreds of cases like Rudling and Vaillancourt.
It’s hard to disagree with Judge John Purtle in a 1982 Arkansas case when he wrote, “This case involves the interpretation of a will, which the testator prepared by filling in blank lines on a commercially printed will kit form. Use of such a device is, at best, risky, as even the most skilled probate attorney would have difficulty with the unsuitable and inept printed provisions in the will kit.”
The takeaway is this:
There is no such thing as a simple will. The use of a fill-in-the-blanks will kit carries significant and potentially expensive risks. It’s like reading a cookbook. All the recipe ingredients may be listed, but if they aren’t used in the right way, the result can be a disaster.
There’s no substitute for a lawyer’s services in will preparation.