The U.K. has ended its experiment with virtual witnessing after finding it did nothing to halt the country’s growing tide of will challenges.
According to the Daily Telegraph, remote witnessing was authorized as a last resort to allow people to continue making wills during the height of the Covid-19 pandemic. However, the rules were reversed after government data revealed they coincided with a large spike in the number of contested wills, which legal experts blamed on the persistent popularity of do-it-yourself wills.
The data showed that a record high of 9,625 challenges were made to the distribution of inherited estates in English and Welsh courts during 2023, up almost 40 per cent compared with the total in 2019.
I have not heard of any plans to reverse Ontario’s remote witnessing rules and I would not welcome them either. Although the process is not flawless – it can be quite cumbersome and generates a surprisingly large volume of paper – I am generally in favour of any technological advance that makes legal assistance more accessible and affordable for all.
However, there are also some important safeguards in Ontario’s legislation that may help explain why the same problems have not been reported here. For example, unlike the U.K. rules, Ontario requires that at least one of the witnesses be a qualified licensee of the Law Society in order for a remotely witnessed will to be valid.
We are also lacking data on the number of will challenges in our courts, but I would bet that DIY wills are just as much of an issue here as they are in the U.K., judging by the ever-growing caseload on Ontario’s clogged estates list.
I understand the appeal of a low-cost option, but what DIY testators fail to account for are the longer-term consequences of omissions, cut corners and mistakes that a competent lawyer would have caught for them.
As the U.K. experience confirms, these oversights mean many DIY wills end up in litigation, where the legal costs eat into the value of the estate, depleting the assets available to your intended heirs.
In days gone by, will kits picked up from a stationer were a worryingly popular product among Canadians, but the concept has since migrated online, where it is an equally bad idea in its digital form as it was in paper.
Common mistakes made by DIYers include the failure to ensure the document is properly signed and witnessed or the appointment of an inappropriate estate trustee. In some cases, the errors could even invalidate the whole document, resulting in intestacy.
In addition to making sure your will accurately reflects your wishes, lawyers can help to minimize the tax burden on the estate and talk you through the role of executor to ensure you pick the right person for that crucial job.
The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan.
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