While sellers of "Will kits" and online Will sales imply that there is nothing to preparing a Last Will and Testament that will do for your needs except punching in a few cursory personal details, careful and ethical lawyers continue to educate themselves to ensure that their clients' families and lifetime savings are protected
and will go to their loved ones with the least grief and financial loss.
In fact, lawyers are highly educated and subject to ongoing annual education requirements in their fields. The law is constantly changing and Wills and Estate Planning is one of the areas of practice in which lawyers make the most insurance claims. How then, can it be so simple that any layperson can prepare his or her own Will from a box or an online form?
Here is a basic--far from inclusive--list of areas that can trip up anyone writing a Will, even a lawyer who has not kept current in this specific area of law.
The law will not permit you to put things in your Will that go against public policy. Courts have made a number of rulings clarifying some of the things that are against public policy, though the list is not finite. I also touched upon this issue in an older post: https://lwhicher.wixsite.com/lesliewhicherlawyer/single-post/2015/01/30/Disinheriting-a-Child
You have obligations to your spouse. If you do not provide adequately as required by the Family Law Act (Ontario), your spouse (as defined in the Act) can take his or her entitlement under the Act instead of the portion allocated by you in your Will, thereby overriding what you said in your Will
Depending on the type of assets you own, your Will may or may not have to be proven in court. If it does, Estate Administration Tax may apply. This can be a substantial amount of money. https://www.attorneygeneral.jus.gov.on.ca/english/estates/calculate.php A lawyer can go over ways to help you plan in such a way as to administer the estate without bringing all your assets into this process. Avoiding court can also preserve your family's privacy concerning the Will and estate, since court documents are public.
Insurance, RRSPs, TFSAs and other such plans require very specific treatment to avoid unintended consequences. Each type of plan has specific rules. There are financial repercussions depending on whether you dispose of them within the Will or not, and if you do, in what part of the Will you address them. Even the choice of words in disposing of certain plans may have very different practical outcomes.
Without careful consideration, assets are sometimes given to one beneficiary, inadvertently creating a large tax liability for the part of the estate intended for a different beneficiary, resulting in drastically unequal shares going to people the deceased had intended to treat the same.
There is no automatic equalizing of transfers or gifts (assets, loans receivable, etc.) that you have given to one person while living, so that rectifying any imbalance that occurred in life will not occur unless the mechanics of doing so are explicitly spelled out in your Will. There will be no legal presumption that you intended an imbalance to be rectified once you are gone.
Some estate planning techniques that have been popular in the past, such as placing assets into joint ownership with another person, may no longer work since courts have changed the law in this area in recent years.
It is important to grant your executors all of the powers they will need to cover as many scenarios as possible that could arise. The laws pertaining to executors' powers have changed over time as well.
Due to a very old common law decision called "The Rule in Saunders and Vautier," gifts to a child or other beneficiary intended to be held in trust until the recipient reaches a particular age above the age of majority may not be effective. The beneficiary could demand that the gift be turned over directly at age 18 unless it is conditional upon attaining the specified age and the Will provides for a "gift over" of the same funds to some other person if the first beneficiary does not attain that age. Knowledgeable drafting is key.
There is a quick peek at the tip of the iceberg for you. The cost to your family of these and other unforseen mistakes must be carefully considered in your estate planning decisions. Do justice to your lifetime of hard work and sacrifice.
***Nothing in my blog posts may be taken as legal advice, as you are advised to consult with a legal professional who is fully informed of your unique individual circumstances.