Wills can take many forms, for example, Cecil George Harris’s historic will, etched onto a panel of farm machinery under which he was trapped and later succumbed to injury, or the Court of Appeal for Ontario’s 2022 finding that a suicide note was a valid will. While the technical legal requirements of a will may be met in a variety of forms—often subject to arduous court proceedings declaring such validity—there is a big difference between what constitutes a valid will and what comprehensive estate planning encompasses.
Individualized Estate Planning
The importance of having a will cannot be understated, however, the will itself is only one component of estate planning. Estate planning requires a more fulsome approach:
- due diligence is conducted to investigate ownership of assets, tax implications of the testator and his or her beneficiaries are considered;
- thought is given to family dynamics; and
- there is often collaboration among professional advisors (wealth managers, lawyers in different jurisdictions, tax advisors, etc.).
All of this leads to the drafting of estate planning and ancillary documents, which may include: one or multiple wills, mutual wills agreements, powers of attorney documents, letters of wishes or memoranda, domestic contracts, trusts, transfers of ownership, insurance or registered plan beneficiary updates, and corporate reorganization documentation.
Importantly, after the estate lawyer completes the necessary due diligence to understand the client’s personal, family, and financial situation and drafts the relevant documents, there is typically a review meeting where the estate lawyer goes over the documents, clarifies legal jargon, and answers any questions the client may have. Then the documents are revised accordingly and once finalized executed in accordance with formal legal requirements.
Estate planning is a process that could take several meetings to complete with the goal that clients have the peace of mind that all considerations were taken to create a tailored estate plan.
Online Will Platforms
Boilerplate wills or “will kits” have long existed. These kits were problematic due to their one-size-fits-all nature and reliance on the user to fill in the documents correctly. They address the basic problem that about 50% of all Canadians still do not have a will even though many have dependents and own property.
Online will platforms aim to resolve the deficiencies of will kits while maintaining the convenience of making your will at home for a fraction of the cost of going to an estate lawyer’s office. The popularity of these platforms especially increased during the pandemic, a time when many of us became more aware of life’s uncertainties.
Online will platforms have become more sophisticated, offering several options to meet your family’s needs with some platforms alerting you when your situation may be best overseen by an estate lawyer. Online will platforms also make legal services more accessible; fees range from $40 to $150 for basic wills and all you really need is an internet connection and a printer.
The Value of Individualized Estate Planning
The cost and convenience of online will platforms are obvious, but when you retain an expert, you are not paying solely for a will but the legal advice and oversight which are essential to estate planning.
Legal Advice
You do not know what you do not know. Can an online will platform advise you on probate planning, including optimal ownership of assets, the first dealings exemption or the presumption of resulting trust? Can online will platforms manage assets in multiple jurisdictions (including other provinces) and ensure there is no conflict among all estate planning documents? What about streamlining provisions in your documents for a non-resident beneficiary such as a U.S. person? The list goes on and on.
These considerations have significant implications for your estate, probate fees, duration of administration, and the distribution of your assets. Legal fees are often outweighed by eventual savings to your estate. The main—and self-serving—point being that although an online will kit results in a will, estate planning is more comprehensive and is forward-looking to the implications on death.
Importantly, estate lawyers can provide legal advice that you can rely on and for which they are liable.
Legal Oversight
Part of an estate lawyer’s role in estate planning is assessing the capacity of the client, speaking confidentially about any concerns the client may have, and taking fastidious notes for the file. In Ontario, the volume of legal requests related to issues arising out of declining mental capacity is increasing due to the aging population, and increased awareness by the public around incapacity concerns.
The validity of any will (drafted online or by an estate lawyer) may be challenged in court on the grounds of undue influence, lack of capacity or fraud, but where a lawyer drafted the will there is the benefit of solicitor notes that often aid in vitiating such challenges.
In exigent or desperate circumstances any valid will may be better than no will, however, the due diligence and legal oversight that come with thorough and thoughtful estate planning will truly give you peace of mind.
— Nicholas André