Can I get a witness?

When preparing your own will, it is easy to overlook some legal formalities that could cost you (or others) much more than you think. One of these is having proper witnesses for your will.

It is a requirement to have two witnesses to witness your signature on a will. If this requirement is not met, it would require a court application to determine if the will is valid. If the will is not valid, then a previous will or intestacy laws would determine who inherits.

There are also restrictions as to who can be a witness on a will. If you are a beneficiary under the will and you are also a witness on the will, the gift that was left to you as beneficiary is no longer valid. This offers protection for will drafter in case the beneficiary is forcing you to sign the will. While it might not be your intention, you could prevent someone from inheriting their gift, or they could have to take legal action to inherit under the will (costing them money).

Under a holograph (handwritten) will having witnesses is not a requirement. This type of will can come with its own set of problems though in relation to witnesses. A handwritten will must be entirely written in your own cursive handwriting (not typed, printed or handwritten by another person). Your handwriting must then be properly identified by someone, which could require previous writing samples or could even involve hiring a handwriting expert to identify your handwriting. All of this would be submitted under a court application to validate the will, costing more money.

All this said, using a lawyer to draft your will provides you with an expert who can avoid these legal pitfalls and help save you money in the end.


I’ve talked about doing your will yourself many times before, and I always start by saying I’m biased in this regard, because I am. I draft wills for a living, so I obviously am going to recommend getting a lawyer to draft your will instead of doing it yourself.

But don’t take my word for it. Check out this article  from The New York Times. Will preparation programs seem like the best new thing, but as the author notes, you don’t know what you don’t know, and the kits are quite simply not good enough.

It’s important to have a will. It’s equally important to have a good one.

Put it in writing

Writing 4It’s not uncommon to hear of someone who promises a certain item to someone on their death, or mentions the way their will is set up. What is less is to find out that person actually followed through with that plan – in writing.

In estates law, as in almost everything, what is written down tends to take priority. While a court will sometimes hear about a promise to leave an asset to someone, and will more rarely order it given to that person (depending on some very specific circumstances), the more likely situation is that the person promised the item simply won’t get it. Everyone has the right to change their mind; telling your friend that you were planning to leave something to your niece certainly doesn’t hold you to it.

The perils of homemade wills (and wills done by lawyers who don’t draft wills regularly)

HomemadeI hear it all the time: people want to get their wills done, but are concerned about the cost. I get it; I do this for a living, and I know that it’s not cheap, especially when compared to a will kit. It sometimes can also be cheaper to get your friend the family lawyer to do a will for you as a favour.

Except it’s not really cheaper, and it’s certainly no favour.

As an illustration, look at the case of Ebenezer Arebesola. Mr. Arebesola paid his bank approximately $200 to prepare a will for him – quite a deal. Unfortunately, the bank employee did not know enough about estates law to understand that you cannot gift a share in a house that is owned as joint tenants, and so the beneficiary was not allowed to inherit what would have been a sizeable gift. As a result, the estate is going through very costly litigation – litigation that possibly could have been avoided if Mr. Arebesola had paid just a little bit more to see a lawyer who knew about estates law.

Buying generic drugs or no-name peanut butter can make sense; making your own bread or cake can be delicious. Going cheap on some of the most important decisions of your life usually isn’t the best idea.

Why a lawyer is your friend

I’ve posted before about the value of using a lawyer over a will kit, but here are some more reasons if you need them.


  • Listen to your goals and make sure they are reflected in your documents.
  • Offer advice on structuring your assets beyond just the will.
  • Are able to give referrals to other complementary professionals.
  • Make sure that your documents are properly signed and witnessed.
  • Make sure that you own your assets in the way that you think you do.

If you need more reasons, Forbes posted this article last year on why you should hire a professional. The author lists a number of additional reasons to have a lawyer draft your will, from making sure there are no errors, to avoiding misleading or confusing wording, to presuming that things will happen a certain way when they might be the opposite.

My posts on this topic are clearly self-serving; ultimately, I want to have people hire me to draft their wills. At the same time, I have seen too many estates go wrong in my estate administration practice to not say anything simply because it may be self-serving. You don’t have to hire me to draft your will. You should hire someone – and that someone should have will drafting as a regular part of their practice.

(Thank you to Greg Herman-Giddens at the North Carolina Estate Planning Blog and Gerry Beyer at the Wills, Trusts and Estates Prof Blog for their blogs on this topic.)

How much is your estate plan worth?

I subscribe to Groupon and WagJag for group buying deals. I’ve gotten some good ones – detailing for my car, gift certificates to some of my favourite restaurants, even video-to-DVD transfer so I can finally watch myself learn how to scuba dive. However, I was more than a little surprised to see a deal one day for 51% off will preparation. Curious, I clicked on the deal, expecting that some enterprising lawyer had offered a discount off their services, and found that the deal was for a will from a website – regular value, $49.

As an estates lawyer, I know that I am biased against kits. That being said, I truly believe that estates is an area of law that is far too complicated to leave to a fill-in-the-blank form. Most of my clients tell me, after our initial meeting, that they no longer believe their estates are simple. This is because most people’s estates are not simple. There is always something that makes your estate unique, and requires some planning beyond what a will kit can do.

Bruce La Rochelle blogged about this issue a short time ago; Gerry Beyer at the Wills, Trusts and Estates Prof Blog did as well. There are so many potential pitfalls in preparing your own will by using a form that it is never something I would recommend, even if I did not practice in this area.

Think about your own situation. Have you been married before? Do you have children? Do you support parents or other relatives? Do you have pets you want cared for? Have you thought about what you want done with your social networking and other online accounts? Have you thought about compensation for your executors? Have you adequately protected your estate from creditors? How about from former spouses of beneficiaries? If your situation is even a tiny bit outside of the cookie cutter norm, you should consider it worth the cost of having a properly drafted will.