Will kits seem to offer a simple solution to a vexing problem. Getting around to creating a Will is difficult enough, never mind making an appointment with a lawyer. The Will kit solution almost seems too good to be true. If the document created clearly expresses the testator's intention (the person making the will), why does it cause problems?
In this article, I will explain why Will kits are not the easy solution hoped for.
A testator can create a Will by following the following requirements:
A will is valid only when it is in writing. Subject to sections 5 and 6, a will is not valid unless,(a) At it's end it is signed by the testator or by some other person in the presence and by the direction of the testator;(b) The testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and (c)Two or more of the witnesses attest and subscribe the will in the presence of the testator.
So, firstly, a Will must be in writing. A verbal or Video Will is not valid. Secondly, the testator must sign, and his or her signature must be witnessed by two individuals who then also sign the will. These witnesses cannot be beneficiaries under the Will. If this is incomplete, then the Will itself does not meet the formalities necessary under the Will's Act.
A testator can also create a Will in their handwriting. We refer to these types of Wills as Holograph Wills. The act states the following at s.6:
A person may make a valid will wholly in the person's handwriting and signed at its end by the person, without formality, and without the presence of, or attestation or signature by a witness.
Again, if the Will is entirely written in the testator's handwriting, no witness signature is required - this is the "formality" portion. I've written about Holograph Wills here.
Will kits usually create a problem because they are a combination of pre-printed or typeface documents with blanks where the testator enters information particular to their estate in handwriting. These include the names of the executors and beneficiaries. However, because the entire document is not written entirely in the testator's handwriting, the documents would not fall within the meaning of s. 6. and would not be considered a purely Holograph Will.
Therefore, the completed Will kit must fall within the requirements required for all other Wills. Two witnesses must observe the testator sign, and they must also include their signatures on each page.
Further, when testators fill out these forms, they often leave areas blank or enter the wrong information because they do not understand the pre-printed text's meaning. People almost always neglect to have two people witness their signatures and when they do, they are usually beneficiaries under the Will, which creates further problems.
If a Will does not meet the formalities necessary under the act, i.e. the two witness signatures, the Will cannot be probated under the normal process. A person who wishes to have the will confirmed as valid must apply to court and appear in front of a judge to have the document proved.
If a Will does not meet the requirements under the Act, the executor must resort to s. 23 of the Wills Act which grants the power of a court to confirm a will that does not meet the requirements of the Act. It states:
Where, upon application, if the court is satisfied that a document or any writing on a document embodies
(a)The testamentary intentions of a deceased; or
(b)The intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;
The court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased.
At best, if the Will kit is relatively clear and unambiguous, a court will grant the request. However, it adds time and cost - going to court is never cheap. At worst, if the Will is ambiguous or does not make sense because the wrong information was entered into the wrong place, it gets complicated. If beneficiaries are at odds, then the matter can drag out for years in litigation, especially if the assets are substantial.
While Will kits can be valid, they are rife with potential hazards. An individual is much better off having a lawyer draft their Will. Costs for preparation will be a fraction of the costs of an application to the court or, in a worst-case scenario, litigation. As the old adage goes: "an ounce of prevention is worth...". So to answer my questions above: yes, Will kits are too good to be effective.
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