Will kits can create recipe for disaster

Bob Aaron in Legal

Whatever money Pauline Rudling saved by using a will kit instead of a lawyer to prepare her last will and testament was spent hundreds of times over on legal fees so that a judge could figure out what she meant.

Shortly before she died in January 2003, Pauline Rudling made a will using a will kit. In it she left her two properties on Shaw St. in Toronto to her two sons, one house to each. Because of some ambiguous wording in the will, her sons wound up in a seven-day trial back in 2007, spending tens of thousands of dollars on lawyers to try to determine how the estate should be divided.

The blanks on the will kit document were filled in, in Pauline's presence, by her son Larrie. Pauline read it before she signed it.

The standard form pre-printed wording directed that all of Pauline's debts, estate expenses, inheritance and death taxes be paid by her executor following her death.

The will then provided that one of her houses on Shaw St. be left to her son Ron, "with all loans, liens, mortgages attached." The other house was left to Larrie, "free and clear of all debt."

Essentially, there were no other assets in the estate.

The sons disagreed on whether taxes and estate expenses were to be shared equally between them or deducted only from the value of Ron's house.

Ron's view was that all taxes and estate expenses, except for the mortgage on the house he inherited, were to be taken off the top and shared equally between the brothers.

Larrie wanted his house "free and clear of all debt," and took the position that all estate costs, taxes and expenses were to be paid from the value of Ron's house.

In the end, Justice J. Patrick Moore agreed with Ron and ruled that all expenses of the estate, except for the mortgage on the house Ron inherited, had to be shared equally between the brothers. Larrie was ordered to pay legal costs of $43,000.

Larrie appealed to the Court of Appeal but failed to attend the hearing earlier this year, and was ordered to pay an additional $10,000 in costs.

I was reminded of the Rudling litigation when a client came into my office earlier this month with the will of her late mother. She wanted to obtain a court certificate of appointment of estate trustee, formerly known as probate.

The will had also been prepared using a will kit widely promoted to the public. The kit included a power of attorney for property and a power of attorney for personal care, also known as a living will.

Someone in the family had photocopied the documents in the kit, but instead of using only one side of the paper, the photocopies used both sides. That wouldn't have been a serious problem if the pages had all matched in the right order, but when the will was finally signed and witnessed, it contained several pages of the power of attorney mixed in with the bequests in the will. One set of signatures is (improperly) in the middle of the document, and another set at the end.

Hopefully, the court will be able to figure out what parts to consider and what parts to ignore.

Over the years, will kits have produced a bonanza of work and fees for lawyers trying to sort out the mess caused by these little time bombs. An online Quicklaw database search of American and Canadian court cases using the phrase "will kit" will yield hundreds of cases like the Rudling one.

Using a will kit is like reading a cookbook. All the ingredients for the recipe may be listed, but if they aren't used in the right way, the result can easily be a disaster.

Ask any lawyer experienced in wills and estates: There is really no such thing as a simple will. If you use a will kit, make sure the estate has enough money to blow on legal fees to figure out what it really means.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail bob@aaron.ca

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