Will kits have limitations, experts say

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VANCOUVER — You see will kits advertised on television and online as a cheap and easy way to determine who gets your stuff when you die, but experts say they’re not for everyone, in particular those with complex assets and multiple marriages.

Most people understand a will is a document with instruction on how your assets are to be distributed after your death.

But just what makes a will valid is more complicated.

Many in the wills and estate industry agree there are two types of wills that are considered valid. The first is a holographic will, which has been entirely handwritten and signed by the person making the will, known as the testator.

The second is a will written by the testator that they sign and date, and that is also signed by two witnesses. The key here is that the witnesses can’t be a spouse or benefactor of the will, and they must sign it at the same time, in the presence of the testator.

It’s these basic rules of a will that drive the market for so-called will kits, which are do-it-yourself documents sold for a fraction of the cost of seeing a legal professional.

The basic difference between a will kit and seeing a lawyer, for instance, is that you don’t get legal advice in a kit. What’s more, the kit costs anywhere from $4 to $40, while an hour of legal advice can run you roughly $400.

Pina Melchionna, the national director of will and estate planning at Scotiabank, says the advantage of will kits is that they are simple and cheap, and better than having no will at all.

However, she argues that if you can afford professional advice, get it — especially if you have a lot of personal and financial baggage.

“The more complex your asset value becomes, the more complex your family dynamics are, the greater the need for professional advice,” says Melchionna.

What’s more, will kits in general can be easier to fight in court because they often include fewer details and special clauses, making them easier to contest.

That could mean more expenses paid by your loved ones after you die to sort out what you really meant in your dying document.

Even people who sell will kits say that people with complicated estates should seek legal advice.

Gordon McOuat, president of Coast Legal Resources, which owns willsandlegalforms.com, outlines scenarios on his website when testators should see a lawyer instead.

They include, for example, if people have been married more than once and have a spouse and children from a previous marriage or marriages, if they want to exclude or reduce the share of a spouse or any child, or if they have a large and/or complex estate.

But McOuat said many people require a simple document that outlines who should get their assets when they die.

“For the vast majority of ordinary citizens these will forms are good,” said McOuat, who used to work as a lawyer preparing wills for clients.

However, he acknowledges not all forms are equal, which is why he said he created a business producing various forms that cater to a person’s personal circumstances.

Tim Hewson, founder and CEO of Parting Wishes Inc., which sells basic will kits at easywillkit.ca and an online will form at legalwills.ca, agrees such forms are not for people with complex estates.

When it comes to will kits though, Hewson believes the best are those that offer as many possible scenarios in case of death, such as alternative benefactors.

Hewson said the kits and online forms are not only cheaper than visiting a lawyer, but also are good for last-minute situations, such as the night before a risky surgery.

“A lot of people don’t think about a will until a circumstance arises that forces them into it,” Hewson said.

“We are making it more convenient for people.”

Irit Gertzbein, an estates and trusts associate at law firm Goodmans, argues the benefits of hiring a lawyer to write up your will far outweigh the costs.

She said the kits often don’t have enough clauses to cover the many areas necessary in a will, and that the pros of them being quick and inexpensive are “superficial.”

“The thing that bothers me about them is that they give people a false comfort level,” said Gertzbein.

“It’s not right to give people who don’t know the law that false sense of security.”

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