With DIY wills, you get what you pay for
Nathan Samuels · December 31st, 2008
You won’t hear this from most estate attorneys but the truth is there is a wide variety of inexpensive home-made will “kits” available on the market today. From ready-made “fill-in-the-blank type forms” to elaborate computer programs. But beware, as the saying goes, “You get what you pay for.”
Before tackling all those estate planning issues you’ve been meaning to get to – like getting your will prepared, you should be aware that writing your own will is not advised. Of course, in these uncertain economic times, the substantial difference in cost between preparing your will with a professional and going out and purchasing an inexpensive “DIY will” dictates that an explanation be given as to why writing your own will is not such a good idea (no matter how much money you seem to be saving in the short-term).
To begin with, the idea of writing your own will based on a “fill-in-the-blank style” form or with general “catch-all” templates goes against one of the fundamental purposes of writing a will – that being to create a tailor-made document that is going to deal exactly with the issues of your estate and ensure your wishes are properly carried out. The problem with the DIY style will is that it leaves you with only blank spaces and general templates with which to create this very important “tailor-made” document that will one day be used to fulfil a very specific purpose – the administration and distribution of your estate. You may end up with a very legal looking document that seems to express your specific wishes for your estate, but the reality is that the limiting structure of the DIY style will can have the tendency to force its users (often unbeknown to them) to fit and squeeze their estate plan into the format of the will instead of the other way around. Inevitably, the home-made will writer, whether he knows it or not, is left with something less (or more) than what was originally intended.
Another reason for not writing your own will is that it is expensive. Yes, the DIY will kit you might find at the store or online will cost you next to nothing in comparison to instructing an attorney, and sitting down at home and going at it alone, even less. But the risk of your estate having to go through expensive litigation in order to determine your intentions set out in your home-made will is high – in fact, thousands of dollars higher than any professionally drafted will would have cost you.
With any legal document, such as the contract that may exist between you and your electrician, there is a possibility of misinterpretation. It is the same with a will, except for the obvious fact that at the very time a will is to be interpreted its writer is no longer alive to do so. As a result, the courts have developed very specific but helpful rules of will interpretation (and consequentially will drafting). Although, in certain circumstances, the application of these rules can be complex, most of them follow common-sense principles. But they are not all so obvious – such as the very specific rules and conditions for signing and witnessing a will or the words required to create an effective trust within your will or even the fact that a gift under a will can be made invalid if the beneficiary of that gift witnesses the will. These intricacies, coupled with the fact that the average writing aid is not based on Bermuda law, make the venture of home-made will writing a risky business.
From an estate planning point of view, writing your own will is simply not worth the risk – because the real question is not how much is a will going to cost me now, but how much is my will going to save (or cost!) my estate after I pass away. There is one particular Bermudian case that emphasizes this point exactly. In 1985 a retired police officer drafted his own will on a sort of DIY will form. Based on his hope that his third wife and his daughter from his first marriage would come to a mutual understanding as to the particulars, he requested, in very general terms, that his estate be shared between the two of them. It seems the obvious happened. The two never came to an agreement and the matter went to trial. In the end the supreme court judge did his best to uphold the retired police officer’s original intentions but not without making the very important point that, “If the intention of the [retired police officer] in using that Form was to save legal expenses, then that intention has failed…” I’ve been made to understand that the cost of that trial was upwards of $50,000.00. That was one expensive home-made will.
(with permission of Bermuda Sun)