If you have ridden the subway recently in Toronto you may have noticed a number of ads for formalwill.ca, a website that advertises itself as “Canada’s leader in online Legal Wills”. Being involved in the estates field myself, the website naturally caught my attention.
The move online for “do-it-yourself” wills should come as a surprise to no one. From websites that allow you to do your own tax returns, to websites that allow you to sell your own home, many services that in the past may have involved the assistance of a licensed professional are now being advertised to people as do-it-yourself options from the comfort of your own home.
In principle there is no reason that an individual could not properly draft their own will using the assistance of a website. So long as the individual ensures that the will is properly executed, and properly considers who they would like to bequeath their property to, there is no reason that a person could not create a legally enforceable will that meets their estate planning needs. Like many things in life however, the devil is often in the details.
The case of Re Forest, (1981) 8 E.T.R. 232, is an excellent cautionary tale in the world of do-it-yourself wills. In Re Forest, the testator purchased a legal “will kit” in which they were required to fill in blanks on a pre-printed form. Unfortunately for the case of the testator, when it came time to execute the will, while the testator signed the will, he did not have it witnessed by two witnesses. As a result, the will did not meet the formal requirements to constitute a valid will.
Having ruled that the document in its totality was not a valid will, the court next looked to whether the handwritten portions of the will could in and of themselves constitute a holograph will. The court assembled the portions of the will that were in the testator’s own handwriting and looked to see if the language contained in them could form a will in and of themselves. Unfortunately again for the testator, the court found that the handwritten portions in this instance could not constitute a valid holographic will for, amongst other things, they did not appoint an executor or dispose of the residue of his estate.
Online legal will kits would offer an interesting twist to the holograph will scenario contemplated by Re Forest. While previous “will kits” had you fill in blanks on a form, with the possible effect that even if they were not executed correctly a holographic will could potentially still be found to exist, in the case of online legal will kits presumably the entire document would be printed from your computer. As a result, should an individual fail to properly execute the will as occurred in Re Forest, a holograph will could likely not be found to exist as there would presumably be no dispositions in the will in the testator’s own handwriting.
Thank you for reading.