Will and Estate Lawyers including myself are frequently asked by our clients – what is wrong with simply using a Will kit downloaded off of the internet? Why do I have to spend $1,000 and more on you, when I can do it myself. The hypocritical answer that I give my clients is absolutely please go for it, there is virtually no profit to be earned by our office in preparing a basic Will. Many general practitioners do it as a loss leader. The author is not a general practitioner, his practice is exclusively limited to wills and estates. The reality is we earn far more in legal fees in remedying a Will drafted by a willmaker. That is one that you do yourself with no guidance by a lawyer.
One common problem of a self drafted will is when a Will on its face it contains two clauses that appear to clash with each other. The recent case of McCubbin v. McCubbin explored this issue. The court reiterated the modern method and principles of interpreting a Will. The court was allowed to consider outside evidence as to the intention of the willmaker. The beginning point is that the judge should sit in the willmaker’s armchair and determine what they were attempting to do and what were the willmaker’s circumstances and intent at the time of the wills signing. The court is required to look at a Will in its entirety, all of its provisions and to interpret the Will from a holistic perspective, including outside evidence if it is available as to what the willmaker intended. Another example of this principle is set out in re: Shamas, a 1967 a case which interpreted conflicting clauses technically referred to as repugnant clauses. What was the real intent, if two clauses do not make sense when contained in the same will. This mistake is more common that one can imagine. It takes a legally experienced eye to point out the conflict especially if they are hypothetical and not considered. Estate lawyers who are experienced Estate Litigation Lawyers travel down the same long torturous route that judges follow to resolve these repugnant clauses. But why spend the money if for a few dollars the will had been properly drafted in the first place. The moral of the story is please do the legal profession a favour, write your own Will and we will thank you after you are gone for enabling us to put food on the table and send our children to private school.
