MHWP Law

Should I use a Notary or a Lawyer to draft my will?

Well, let’s start off with a different question – can a notary draft a will? If you want a short answer, then that would be “yes”, but only certain wills, with many limitations. For a bit more information on what those limitations are, do read on.  

Court Confirmation

The Court of Appeal for British Columbia in 2017 reaffirmed these limits on notaries’ authority to prepare wills in the case of Society of Notaries Public of British Columbia v. Law Society of British Columbia 2017 BCCA 448. The unanimous Court of Appeal stated definitively that a will in which the beneficial interest vests immediately on the death of the will-maker, but distribution of possession or legal title (or both) is postponed, is not within the scope of a BC notary’s scope of services. What does that mean and how does that answer the question asked in the title of this article – “Should I use a notary or a lawyer to draft my will?”. Let me clarify what the court meant.

Limitations

The court confirmed that notaries can only prepare wills where the will-maker’s estate is distributed immediately on death. The will cannot provide for a delay of any kind between the death of the will-maker and when the beneficiary receives their portion of the estate. I’ll touch on how this restraint can severely limit your estate planning options when creating a will:

A notary cannot create a will that contains a life estate in a property:

  • This is where the will-maker gives someone (a beneficiary) the right to use/live in a property for as they wish during their lifetime. Upon that beneficiary’s death or when they no longer wish or need to use that property, the property becomes a part of the estate and is distributed to the ultimate beneficiaries of the residue of the estate. This is a particularly useful tool in cases of children, dependent family members or in the case of blended families (such as giving the will-maker’s new spouse the right to live in the house during his/her lifetime, but upon the new spouse’s death, the proceeds of the house would go to the will-maker’s children).

A notary cannot create a will that contains a testamentary trust:

  • A trust exists where a person called the “trustee” has an obligation to handle property for the benefit of a person called a “beneficiary”. The person who created the trust is called the “settlor” Through a trust, a trustee holds title to assets on behalf of one or more beneficiaries.  Trusts are extremely useful estate planning tools and there are many types of trusts which can be set up in your will, and which can only be done by a lawyer, a few examples of which are discussed below.

A notary cannot create a will that contains a trust for minor children:

  • A common testamentary trust is one set up for minor children. In your Will, you may set up a trust where your beneficiaries do not receive their inheritance until a certain age. for example, one-third (1/3) at twenty-one (21) years old and the balance at twenty-five (25) years old. In this way, your beneficiary receives the money in stages. You can give your Trustee power to pay money before and between these ages for various reasons, such as health , housing or education. If you don’t have a trust for your minor children, if they become entitled to a portion of your estate, the law provides that they will receive their entire benefit at age 19, and that 19 year old makes the sole determination as to how he/she spends that money. My 19 year old self likely wouldn’t have made wise choices with a substantial amount of money being gifted to me, so this trust can be a great way of making sure your hard earned estate isn’t squandered by a 19 year old beneficiary.

A notary cannot create a will that contains a disability trust / fully discretionary trust:

  • If you have a beneficiary who is a person with disabilities (PWD), you need to be extremely careful when gifting them anything in your will. That gift will likely disqualify or disentitle them from receiving their provincial disability rights. By creating a qualifying disability trust / a fully discretionary trust, where the trustee has the sole discretion as to what money gets paid to the disabled beneficiary and for what purposes, the amount held in that trust and any payments out of the discretionary trust to or for the benefit of the disabled beneficiary for “disability-related costs” will not reduce or eliminate the disability benefits that the beneficiary might otherwise have been entitled to.  Can you imagine gifting a disabled beneficiary some of your estate, only to disqualify him/her from their disability benefits? Lawyers can make sure that doesn’t happen.

A notary cannot create a will that contains a Spousal Trust:

  • Spousal trusts are often used in larger estates where the spouse lacks financial experience, is ill, or incapacitated, or when there are children from a previous marriage.  These trusts provide income from the estate to the spouse until his or her death, with the estate ultimately passing to the children or grandchildren. This can avoid the undesirable scenario in a blended family, where a new spouse (with children from a previous marriage) gets the estate of a deceased spouse (who also has children from a previous marriage), but the surviving spouse subsequently does not provide for the deceased’s spouse’s children in his/her will. The aforementioned scenario opens up both parties’ estates to costly Wills Variation claims asking the court to vary / change the terms of the deceased party’s will.

Cost

There is a common misconception that lawyers are more expensive than notaries. Quite often, prices between lawyers and notaries are comparable and in some cases, notaries may even charge more. The cost of obtaining services, whether provided by a lawyer or notary, varies from firm to firm and person to person. This variance usually reflects, among other things, the professional’s experience and the legal matter’s complexity. Feel free at any time to call us for an estimate on the cost of preparing your will.

Conclusion

While you may not require some of these estates planning tools which only lawyers can utilize, understanding what options are available to you, how they can benefit you and having the ability to include those options in your will, is invaluable to effectively planning for your future. Our lawyers will get to know you, your family and your estate and can efficiently advise on how these tools can be used to benefit your estate and your beneficiaries. You only get one shot at your will, so let one of our Maple Ridge Wills & Estates Lawyers create a will that actually works for you.

 



The information contained in this article is for general purposes. It does not constitute legal advice. It is not to be construed as a warranty, guarantee and should not be relied on. Do not act on the information in this website without consulting your lawyer or a lawyer who can provide legal instructions relevant to the full scope of your matter.

Lyle Perry

Lyle Perry
July 02, 2019

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