B.C. Estate Law Issues: Why a Lawyer is Better Than a Will Kit or a Notary
Note: This article does not contain legal advice about common will pitfalls and B.C. estate law planning. If you would like advice on your specific situation, please contact Spraggs Law.
Vancouver lawyer Michael Liu discusses common will pitfalls and how a lawyer can help you avoid them. This article provides a summary on basic legal requirements of a will, wills variations and other concerns, and overall estate planning.
Wills (and common will pitfalls) are typically the first thing that comes to mind when we think about estate planning.
A will serves some important purposes, including:
- Providing peace of mind that loved ones are taken care of
- Financial and tax planning
- Taking care of funeral and other arrangements to less the burden on friends and family when the time comes
- Freedom to allocate assets as you wish subject to some legal restrictions– quite literally a person’s final exercise of his or her property rights
There is no doubt that notaries and will kits are less expensive options for drawing up a will and are typically more suitable for individuals who do not have significant assets or simply want a “just in case” will (e.g., appointing a guardian for young children or going on a long trip). However, there are certain benefits that only a lawyer can provide that must justify the additional expense.
Legal Requirements of a Will
In British Columbia, a valid will needs to meet certain legal requirements such as having your signature properly witnessed. Lawyers and notaries can assist with the execution of wills to make sure that the basic legal requirements are met. A will kit will not provide this assurance.
Wills Variation and Other Concerns
In B.C. as well, a spouse or child of the deceased may ask the court to vary an otherwise valid will if the court accepts that the will does not “make adequate provisions for the proper maintenance and support of the will-maker’s spouse or children”.
A lawyer can give advice on the risk of a wills variation claim based on the intended distribution and ways to mitigate that risk such as revising the distribution formula or properly documenting the will-maker’s intentions behind a specific distribution formula.
An otherwise valid will, can still be partly or wholly unenforceable due to issues such as internal inconsistencies, wording ambiguity, inadequate instructions or some type of clerical flaw. These are issues that a lawyer can also identify.
A common issue in probate is that an applicant cannot locate the will or only has a copy. If a lawyer was involved in the drafting of the will, he or she may be able to assist with locating the will or the original of a will, or at least provide information for the probate applicant’s supporting affidavit.
It is important to note that in contrast to a B.C. estate lawyer, a notary is unlikely to comment on anything that may be considered as legal advice.
Overall Estate Planning
The biggest advantage of engaging a lawyer for one’s will is that the lawyer can give advice in contemplation of one’s overall estate planning strategy, such as:
- Tax planning considerations
- Assets that can be addressed outside of wills through joint tenancy, inter vivos transfers, trusts and beneficiary designation etc
- Pre-death and incapacity arrangements such as power of attorney, representation agreements and advance health directives The potential interaction between estate planning and other legal matters.
For example, in this last case, an individual’s estate planning may affect or be affected by family law issues such as ongoing divorce/separation proceedings or anticipated remarriage or legal adoptions.
Summary: Common Will Pitfalls and the Benefits of Having a Lawyer Involved in Your Will
|Confirm Legal Requirements||Wills Variation and Other Concerns, Legal Advice Generally||Overall Estate Planning|
Do you need help with a will or other B.C. estate law issue? Spraggs Law can help
Give us a call at 604 359 1627 for a free consultation to discuss how we can offer personalized assistance based on your circumstances.