Making a will - DIY
 

I'm sure this has cropped up before but I can't find anything.

On a UK website I found this:
Does this hold true for Canada too? Are there "will writing services" in Canada. $400 to $600 seems a bit steep for the situation described when a kit from Staples can be had for less than $20 or for between $30 and $70, answering a few questions on various "legal document" websites seems to produce a simple will (with seemingly legal jargon) as above.*...*

Does anyone have any experience of DIY wills?

Re: Making a will - DIY
 

Isn't this something that will vary from province to province in Canada? Provincial legal frameworks being subtly different in each place?

Re: Making a will - DIY
 

I believe the quoted advice holds true either side of the Atlantic.

I have lots of experience of having to deal with DIY wills after death of the testator either side of the Atlantic. IMVHO, none of them were worth the amount saved by not using a lawyer.

Be very careful about a hand written will. It is only valid if it is written entirely in the hand of the testator. Filling in blanks in "will kit" does not satisfy this requirement.

There are will writing services available in Alberta. They are, of course, all non-lawyers. Why somebody would pay them to write a will is beyond me.

Re: Making a will - DIY
 

Hi


The law firm we use, quotes $250.00 for a simple will, $450 for a couple, and $350 for seniors. Well worth the money to have it done properly.

Re: Making a will - DIY
 

The sites I have looked at appear to allow for that

Do you think that varies according to the complexity?

That is certainly something that doesn't come across from what I looked at so far, thanks.

Maybe they at least recognise what meets various legal requirements and can spot problematic areas? After all, people do pay extra to have their passport application done via the post office in the UK (assuming this is still a service provided) and benefit from the security that it's done properly.

Every would be immigrant to Canada is actively discouraged from using an immigration lawyer. Software helps with taxes - probably Tax Return services charge fees for using the same software people could use themselves.

Some folk buy/sell property on a DIY basis. :eek:

For a situation as described - the sole asset (the marital home jointly owned by husband and wife) passing to the surviving spouse or the named kids - is it not pretty straightforward and feasible to do via, say, legalwills.ca or lawdepot.ca?

Re: Making a will - DIY
 

I am confident that there have been many DIY wills that achieved what the testator intended them to achieve without issue.

It all comes down to your risk tolerance. The incorrect use of words; the incorrect execution; the incorrect use of people (as I have indicated here before, in Alberta, nominating an out of Province executor creates unforeseen issues) etc.

The fees that PMM has referred to above are, IMO, not excessive for peace of mind. YMMV

Re: Making a will - DIY
 

I suppose you could see what happens in your province if you die intestate. The rules may meet your needs.

We paid something over $800, taxes and all the other charges lawyers manage to get on their bills all in, for two wills and two powers of attorney. It is a chunk of change. I rather hope Mrs. JonboyE will be upset when I turn my toes up so anything I can do now to make it easier I will do.

Re: Making a will - DIY
 

These kind of discussions always make me think lawyering is one big scam. At least it is not there to protect people and is instead just self serving.

If you write your own will and it is obvious to a reasonable person what you meant then it should just be carried out. Lawyers shouldn't get to screw people just because you didn't follow their money grabbing rules.

Re: Making a will - DIY
 

Thats fine if all the family left behind are going to play along, but if one person challenged it then the lawyers will end up taking far more than it would have cost to make it watertight in the first place...

Its a minefield, you are damned if you do, and damned if you dont.

Re: Making a will - DIY
 

Which is why I included that specific example where it all goes to the spouse or to all the kids if the spouse has died too.

What is there to challenge? Who's left to challenge? Siblings of the deceased?

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Wealth is being transferred and lawyers want their cut.

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These sort of threads make me think "Must Make Will". I really must, and I have to get round to one in Canada, had one in Europe, just not here. That's stupid. Thank you for reminding me Bristol.

Re: Making a will - DIY
 

In BC there are only three grounds for contesting a will:

i) because there is some flaw in the will itself (including the mental capacity of the testator)

ii) because the meaning of the will is unclear

iii) because the will does not make adequate provision for the deceased's spouse and dependents.

A lawyer can ensure i) and ii) doesn't happen. They can also give advice on on iii). iii) is the main reason wills are challenged. However, I don't think "leave everything to the spouse, and if they pre-decease me equally to the kids" leave much scope to challenge.

Re: Making a will - DIY
 

I had (have) a will in the UK which was pretty simple. I have never received a convincing reason why it wouldn't be valid here given it has the things that I'd want to happen written in it clearly enough to be understood by non lawyers.

Re: Making a will - DIY
 

That's what makes me think $600 plus isn't worth it.

Re: Making a will - DIY
 

It most likely is valid here.

We managed for years with DIY wills as our affairs are simple and it was unlikely they would be used.

To be honest, it was the power of attorney that got me in front of a brief. The older we get the more likely we are to be incapacitated for some time. Having a power of attorney for each other will make life so much simpler when that happens. There is also value in being sure that my will is watertight as it might be used before too long.

Re: Making a will - DIY
 

Why do you believe it won't be valid?

Re: Making a will - DIY
 

Mmmm we did ours before we left the UK with a lawyer....wasn't too expensive and the lawyer is holding, and the do dah what's its's all know where it is...
I wasn't so much worried about the money, well that too but what would happen to the children if the husband and I die and leave them in a foreign country. That's I wanted the lawyer- awkward family situations.

When we went to see a Canadian lawyer about house purchase (we own in Canada and UK) he said we did not need to make another will, although the UK one said yes and make sure neither cancel each other out. Anybody know who's right? Hopefully it's not a hijack of thread, hopefully more detail to it...

Re: Making a will - DIY
 

I seem to recall you saying that their would be problems doing this. A two minute search comes up with nothing useful so maybe I imagined it like when I thought you were in the Falklands shooting at the general belgrano.

Re: Making a will - DIY
 

I cannot imagine why it would be invalid. More problems are caused by having a "Canadian" will and an "English" one unless they are written very carefully and both lawyers know what they are doing.

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Our lawyer, where we made our last will, is in Jersey, and he told us that in his opinion it is better to have a will in each country where you might have property as it makes it simpler all round.

Re: Making a will - DIY
 

Then I shall retract some of my earlier indignation.;)

Re: Making a will - DIY
 

I am not a lawyer but I quite often end up having to deal with wills, well written and not. I only get involved with the money and property side so I am not sure how it works with surviving minor children. I am sure AC knows this.

The "problem" is that institutions such as banks, pension funds and the land registry will only transfer money and property to you as executor if they are convinced you have the right to receive it. I.e. they want to see a probated will. *

The second "problem" is whether or not a court in, say, Ontario or New Brunswick will probate a will draw up in a foreign jurisdiction. The law in all the provinces of Canada except Quebec is derived from English common law so a will drawn up under English rules ** should conform to the rules in the ROC. For peace of mind you could ask a local lawyer to review the will. If I put my professional hat on for a moment I think reviewing your will on a periodic basic is a good idea in any case.

A second thought is who is the executor if you both die together? A friend or relative in the UK can do it, but it will be very onerous to ask them to gather your assets in Canada. It is much easier if the executor is resident in your province.

A third thought is that if you both die together does anyone in Canada know that you have wills in the UK and where to find them?

A forth thought is that if your estate is potentially subject to UK inheritance tax it is going to make it more difficult to argue that you are non-domiciled in the UK if you have maintained your will there.

As for having separate wills in all jurisdictions where you have property this gets over the "probating foreign wills" problem. It seems to make sense to me if you own property in, say, France because France has a different legal system and different rules regarding wills. However, as noted above, the wills need to be very carefully drafted because if they contradict each other in any way it may mean that neither will is probated and you end up applying to court to fix any discrepancies. A long, frustrating and expensive process.

* I am probably teaching you to suck eggs but, probate means submitting the will to court. The court examines it and, if all is well, stamps it and says, "yes, this is a valid will." For a fee, of course.

** As AC corrected me before, Scotland has a hybrid legal system so this is not necessarily true if you have a Scottish will.

Re: Making a will - DIY
 

Excellent post. Typo aside :p., I don't disagree with anything JonboyE has stated.

I would, of course, suggest reviewing any will on a periodic basis, but that Alan2005 chap would simply accuse me of seeking work on behalf of lawyers :rofl:

Re: Making a will - DIY
 

Hi


1. What we did with our wills is that we gave a copy to the executors in a sealed envelope outlining where the original was kept, where all our assets are, with the banks/trusts/credit unions with account numbers, also financial planner's contact with a list of mutual funds and their contacts. As well there is a power of attorney and a living will on our end life wishes.
2. It should give them a head start if we both "bite the biscuit" at the same time.

Re: Making a will - DIY
 

It really depends on your estate, this question comes up on here quite often but it really depends on the circumstances of the individual. Where are your tangible assets for example? Because if you've got tangible assets abroad (e.g. a rental home) then probate will probably need to be completed in that jurisdiction as well. Which means the wording of your Will becomes very important because you want to make sure that you've got a clear line between what goes into probate where you live and what goes into probate abroad (as little as possible usually).

Where is your pension? If you emigrated to Canada and still have a pension in a foreign country, what are the consequences to that pension when you die because the rules abroad are not necessarily the same as the rules in Canada. Does Canada have an estate tax treaty with that jurisdiction? What are the provisions of it? (Do not confuse estate tax treaties with income tax treaties). You can end up with dual taxation in some situations because Canada taxes estates using the deemed disposition rule but other countries can tax income from the estate, e.g. money coming out of a pension.

Who is your executor? Do they live in Canada? Provincial laws differ as well, for example in Alberta we have the Personal Directives Act which is a form of living Will for personal matters (e.g. you're in a coma), that has to be complied with.

Have you granted power of attorney if you are incapcitated, and if you have assets abroad, have you granted a power of attorney that complies with the laws of all the relevant jurisdictions?

Do you have children? Do the wishes concerning your children in your Will comply with the relevant laws, e.g. you may want to appoint a guardian who lives in another country - is that legal in both jurisdictions? The laws concerning family matters in Alberta are very different from the Children Act in the UK for example.

As I've said on here various times, this is a very complex subject and you should really talk to an expert, not a bunch of strangers on the internet. You just need to make sure you've got the right expert. I assume if you're on an expat forum you are an expat and soon as you get into - I've moved from country to country, things can get messy.

But just a tip - if you live in Alberta, I very strongly recommend you establish a personal directive and register under the Personal Directives Act. Personal Directives - Alberta Human Services - Government of Alberta

Re: Making a will - DIY
 

A very, very important point, there is caselaw on it.

Re: Making a will - DIY
 

Why does that matter if the person is dead?

Please explain to me how a testamentary appointment of guardianship is dealt with differently in England and Wales when compared with Alberta?

How do the provisions of the Children Act in England and Wales differ from those in Alberta, in the context being discussed?

Re: Making a will - DIY
 

My head hurts just reading all your posts. But the jist of it is we need a very carefully drafted will in both countries, and also a Canadian executor who is aware of the existence of the UK will and executors.

Our children at the moment will return to the married UK family friends appointed as guardians. We have a property which we rent out and both of us have NHS pensions plus UK insurance policies (we checked validity of living in Canada) which are still ongoing to provide for the children, plus policies to cover mortgage here too. I have to admit I didn't understand the bit about being non-domicile and tax inheritance.

I feel will procrastination coming on....sigh.

Re: Making a will - DIY
 

Domicile is a concept in UK tax. If you are domiciled in the UK then your world-wide estate is subject to UK inheritance tax when you die (if it is over the threshold).

A person generally has their domicile in the country they were born. To lose your domicile of birth you have to move to another country with the intention of living there until you die. Intention is very hard to prove, especially when you are dead. The advice often given is to buy a burial plot in Canada. That is a bit OTT in my opinion but if this a potential issue you should certainly organize your affairs to make it look like you are not going back. Every tie you retain with the UK allows HMRC to argue that your emigration was not intended to be permanent therefore you have not lost your domicile in the UK. They then hand your estate an inheritance tax bill. Having your one and only will in the UK makes it look as though your intention was to return.

I have used "you" because it was easier to write. These are general principles and not intended to refer to you specifically.

Re: Making a will - DIY
 

Ah ok clearer.... No feel free to refer to me specifically ;) ... How about the children going home...wouldn't that make intention clear? Best thing to do is not to die just yet obviously!:fingerscrossed:

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Yes, not dying is a useful tax planning technique. If children are involved I think it is important to have a serviceable will. The rest can really be left until you have made firm decisions about your future.

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Which is why the question opening the thread was restricted to a very basic situation without all those complications. ;)

Not that real experiences are something to be ignored,of course.

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:thumbup: You've made me realise that I too had better defer my demise till my affairs are in better order...thank you for starting such a thought prompting thread.

Re: Making a will - DIY
 

That's all very well, but what if you're being left something? http://www.librum.us/smileys/evil.gif

Re: Making a will - DIY
 

Both countries?
Forget the idea of "countries" when thinking of wills and estates. Ontario has different laws to Alberta. England is different to Scotland.

Normally you require just one will at any one time. Although a lot of lawyers seem to advise making multiple wills, the risk of the different documents contradicting each other is high. Not clear why anyone would want to do that without having an especially good reason.

You say you have a U.K. (English, Scottish or Northern Irish?) will already. That should normally be valid in your Canadian province unless it is defective in some way. For example, if the provincial law required three witnesses and you only required two where the will was made, there might be a problem. Your first step should be to check with a local lawyer if your U.K. will would be acceptable in your province.

Except that you should understand that children aren't property, so cannot be left to someone else in a will. The family courts of your province of residence would have the say in how they were looked after and although they probably would take account of your written wishes to some extent, this would depend on facts and circumstances at the time.


Short answer, if your home is still in the United Kingdom (and if you have not obtained permanent resident status in Canada, it almost certainly still is) you are still liable to U.K. Inheritance Tax. Which in turn depends on how much is in your estate.

Re: Making a will - DIY
 

There was an interesting (to me at least) case in the Tax Court of Canada (TCC) that involved non-domiciled status in the UK. This was the case of Black, C.

The facts were that Black, C was a Canadian resident who moved to the UK to take up an appointment. He lived in the UK for several years then, after a sojourn in the United States, returned to Canada. The CRA attempted to tax his considerable worldwide earnings for these years.

Black, C argued that he became a tax-resident of the UK and the CRA had no right to tax any of his income for the period until he re-established residence in Canada. The TCC looked at the UK / Canada tax treaty and determined that he indeed had become a tax-resident of the UK. Therefore the CRA could not tax his UK earnings. However, they also noted that Black, C had taken advantage of the non-domiciled rules in the UK. These rules are that if a person is resident but not domiciled in the UK they are only taxed in the UK on their UK sourced income and worldwide earnings remitted to the UK. Any worldwide earnings that stay offshore are free of tax in the UK.

The TCC stated that tax treaties are created to avoid double taxation, not to enable double non-taxation. Therefore, if Black, C's worldwide income was not taxable in the UK it was taxable in Canada.

Black, C is appealing (the case, not his personality).

Re: Making a will - DIY
 

And how about Barbara? :rofl: