Why Is It Important To Have A Lawyer Draft Your Will

There are people who, for whatever reason, just do not want to go see a lawyer for assistance in preparing their will.

They would rather use a do-it-yourself kit, and that’s unfortunate because when they prepare the will themselves, they are setting up their families for potentially tremendous problems down the road. Problems arise with simple details such as not having the will properly executed or signed in front of two witnesses or using improper witnesses such as a beneficiary or spouse of a beneficiary as a witness. There are many cases in which the will has not been properly executed, making the will void or certainly subject to challenge.

Another problem arises when there is a question as to whether the testator, the person who is making the will, has the requisite mental capacity. If you do your own will, you are basically just filling in the blanks and having a couple of neighbours act as witnesses, or maybe you are doing a holograph will, where you just write it by hand and sign it. That could also lead to problems because if there is no objective, independent party such as a lawyer, interviewing the testator, and taking careful notes as to their mental capacity, that will may very well be challenged. There would be no evidence from anybody as to the testator’s capacity at the time the will was signed. This is one of the significant advantages of having a lawyer.

Also, the lawyer will be able to identify various potential tax-saving strategies and other issues that an untrained lay person would not recognize. Therefore, it is very important to have a lawyer involved and particularly a lawyer who does a lot of this kind of work. People will often ask their family lawyer to put a will together and quite often the will is just fine. But because the area of Estate Law is becoming so complex and the number of challenges is rising exponentially, it is crucial to have a lawyer who specializes in this area.

There are many examples of poor drafting, where a person who is not trained in this area will draft a will that is open to challenges. For example, a lot of people want to leave gifts to charities. They do so because they believe in making donations and it is a great thing to do. There is also a tax benefit; but if you are going to leave something to a charity, then the law requires that you name that charity correctly using the proper legal name. I recently had a situation where someone wanted leave something to a charity. We did a search with Canada Revenue Agency’s list of charities because that’s where you can find the official listing of all registered charities in Canada. We found that there were several charities with a very similar name and we had to further interview the client to make sure that we understood which one she intended to benefit in her will. That’s just a small example of the work that goes into properly drafting a will and shows how a lawyer with experience in this area will be aware of details that another more general lawyer is probably not even going to consider.

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If you, or someone you care about, is dealing with estate law issues in the Markham, Ontario Region, contact Charles B. Ticker for a consultation.

This article is taken from a April 25, 2008 interview with Charles B. Ticker, Estate Lawyer with Charles B. Ticker Law Office, a Markham, Ontario Wills and Estate Law Firm. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.