July 22, 2013

Among the general public, there is a perception that despite being a legal document, creating a will does not require the services of an estate solicitor.  There are numerous do-it yourself kits and online services that offer a “fill in the blanks” approach to creating a will.  As an estate litigator, I usually see when the “fill in the banks” approach fails and families have to spend a substantial sum in legal fees addressing issues that could have been avoided if the testator sought professional estate planning and will drafting advice.  However, there are also people who cannot afford legal services or want different options when it comes to preparing their wills.

In British Columbia, notaries public can draft certain type of wills (notaries public can also draft wills in Quebec).  In a recent decision, the Supreme Court of British Columbia clarified that a notary public cannot draft a will that contains a trust or otherwise create a life interest.  Assets in a will drafted by a notary have to be disbursed immediately. The Law Society of British Columbia argued that this means that assets have to be paid out immediately and not vest immediately.  The court agreed and found that by creating a life interest in the will, the notary public had engaged in the practice of law. The court granted an injunction against the notary public that prohibited her from carrying out matters not expressly allowed for in the Notaries Act.

Earlier this year, the Law Society of England and Wales announced the launch of the Wills & Inheritance Quality Scheme, which comes into effect in October 2013.  In England and Wales, several different professionals can write wills (i.e. bank employees with estate planning training) but the Law Society wants to create a special accreditation for solicitors to differentiate solicitor who draft wills from non-solicitor will writers.  This apparently is in response to an increase in estate litigation related to poorly drafted wills.

Thanks for reading.