A number of articles have appeared in mainstream media recently about the growing trend of Do-It-Yourself or DIY projects, an idea that is especially popular among millennials. Social media sites, television shows and companies have made billions by giving the average person the impression that a DIY solution will be a less expensive solution. While that may be the case in the context of crafting and construction, it is important to note that it is often not the case when it comes to DIY Wills (also known as holograph wills).
There are a number of products on the market that claim they will help you create a legitimate Last Will and Testament at a lower cost than a visit to a lawyer’s office. Even if we assume that the product you choose complies with Ontario law and that you have properly executed your DIY Will, it is important to keep in mind that a number of legal issues can arise upon death. For example, if there is any uncertainty surrounding the meaning of the words chosen by you (the Testator), it may lead to more questions about whether the disputed document is indeed a Will. If this happens, your DIY Will would likely cost your estate much more than a thorough estates plan involving financial planners and lawyers.
Often, by the time an estate litigator is contacted about an issue related to a DIY Will, the Testator has already died and we are left unable to find an easy and relatively inexpensive solution to the problem. At this point, it is the estate trustee (executor) or estate administrator who must assume the often stressful and expensive task of proving the Testator’s intentions.
Proving a Will often involves gathering evidence, preparing court materials, and applying to the court for directions before – or in addition to – applying for a Certificate of Appointment of Estate Trustee. Each step in this process is expensive, not only in terms of legal fees that must be borne by the Estate and interested parties, but also in terms of personal costs (e.g. time, stress, etc.) for the estate trustee.
In Melna v Hall, 143 Man. R. (2d) 98, 2000 CanLII 20739, the Court was asked to interpret the meaning of the word “belongings” in a DIY Will. Costs of $4,500.00 (or $6,000.00 in 2016 dollars, adjusting for inflation) for the interpretation were ordered to be paid out of the estate assets.
Costs for a more complicated interpretation of a DIY Will can run many times higher. In Bertolo v. Nadalini, 2007 CanLII 1915 (ON SC), the mother of the Deceased, who was appointed estate trustee under an earlier valid Will, applied to the Court for directions regarding a handwritten document made by the Deceased shortly before her death. A short summary trial was held to determine whether the “disputed document” was a Will. The Court examined the circumstances surrounding the making of the “disputed document” and ultimately determined that it was not a Will. The Court reported that the Deceased’s mother’s legal costs totalling $37,500.00 (or $43,158.00 in 2016 dollars) were ultimately to be paid from the Deceased’s estate assets.
Thus, the cost of an uncontested Will interpretation may cost an estate over fifteen times the average cost of having a lawyer draft a Will; which could easily double or triple if a party opposes the estate trustee’s court application. And we should not overlook the personal costs to the estate trustee and beneficiaries: the time invested by interested parties, the possibility of damaging relationships; the effect the stress of litigation may have on the parties; and memories of the Testator that are now tainted by litigation.
For these reasons, if you are aware of any circumstances that may complicate your estate plan (i.e. second marriage, a business, recent separation, family members outside of Ontario, etc.) or if you have specific testamentary wishes (i.e. wishes that may upset someone close to you, complicated instructions, etc.) please think twice before choosing to rely on a DIY Will. Although a DIY Will may save you money in the short-term, it is critical to consider the potential long-term cost to your estate and the effect it may have on your close friends and family.
