Interpreting a Will or Sarcastic Advice – Write a Will Yourself

Date: 04 Jul, 2024| Author: Fred Streiman

In the world of Will and Estate Lawyers or Wills and Estate Lawyers, it is extremely common for our office to encounter clients who feel that the modest fee we wish to charge for preparing wills is excessive and that they could do better by simply preparing their own Will. It is also not uncommon for our clients to use preprinted forms they have either bought at a stationary store or have downloaded from the Internet. From a purely sarcastic point of view, I strongly urge my clients not to use our office, but to simply give it their best shot in writing their own Wills.

The May 2024 decision of Justice Mario Faieta in the Baert Estate is a case in point. Here we had an estate that between the willmaker and his wife was worth approximately $3,000,000. Rather than preparing a Will with the services of a lawyer, the husband used a preprinted template form and wrote out his own Will instructions. There is no need to go into what occurred, but sufficient to say it was a mess and considering what actually transpired, the Will made no sense. The decision of Justice Faieta is an excellent summary of what the Ontario law is on Will interpretation, and I would recommend it as an excellent source of the law on the point. The court is to try and determine by placing themselves in the armchair of the willmaker as to what they actually intended. Decisions from the Ontario Court of Appeal, and even by the legendary late Lord Denning of England were quoted. Despite a failure of all concerned taking any position (and if they had that would have driven up the legal fees significantly), much money was spent on having the court interpret the Will in fixing its numerous inconsistencies. The moral of the story is if you would like to make lawyers in general far richer then the few dollars they will ask for drafting a Will, do us a favour, take a shot, do it yourself and leave it to a different lawyer after you are gone to pick up the pieces and make much more money funding a court application. Of course there is no way of predicting what a court might do in interpreting the Will, but that along with the excessive fees you leave your estate to pay, that is the risk that you take.

Estate Litigation Lawyers fortunately for us, unfortunately for our clients make a living from clients who are advocates of the penny wise pound foolish school of life.

Justice Faieta has almost 10 years of experience of being a judge and worked mostly in the area of Environmental Law before putting on the gown of a superior court judge.   A clever mind can learn new tricks and that is standard for the lawyers that become judges.