Exit Strategies

By John Heinzl
Investment Reporter

Whoever invented wills had a sick sense of humour. Only a sadist would combine the three things people dread most -- death, taxes and lawyers -- under one roof.

So it's no surprise that drawing up a will ranks near the bottom of the to-do list for most people, behind cleaning out the eavestroughs and recaulking the bathtub. Those chores are a picnic compared with choosing an executor, appointing a guardian for your children and confronting your mortality.

But making a will doesn't have to be like an episode of Fear Factor -- if you believe the pitch for WillExpert, a software product that promises to take the pain out of creating the most important document most of us will ever sign.

While there are myriad software- and Internet-based will products out there for Canadians -- such as The Complete Canadian Wills Kit and Wills-Net.com -- WillExpert may be the most sophisticated yet. The program, launched last year by Intuit Canada, allows users to prepare and update two wills and retails for $49.95 -- $39.95 if you also buy Intuit's popular QuickTax program. That compares with hundreds of dollars or more that most lawyers charge for the service.

My wife had been after me to prepare our wills since our son was born 17 months ago. Before I could reach for the caulking gun, she was inserting the WillExpert disc into our home computer.

We prepared a sample will and invited estate planning experts to review the document. Most warned strenuously against using do-it-yourself will kits for anything other than educational purposes, but WillExpert earned a few compliments, too.

WillExpert's "EasyStep" interview format may be its best feature. The user answers a series of plain-language questions, and the program designs a will and power of attorney documents to suit his or her wishes. Extensive help features include videos, background explainers and templates for letters to guardians and executors.

Those bells and whistles are welcome, because estate planning makes derivatives trading look easy. No matter how much someone dumbs down the legalese, wills are complex animals, and the permutations and combinations can be mind-numbing.

"My head is starting to spin a little bit," my wife said, as we struggled to make sense of a particularly convoluted statement staring back at us from the screen. This was after the program refused several times to let us re-enter the name of an executor we had deleted.

Another problem: Some of the language was ambiguous. WillExpert asked if we owned real estate that had "significantly increased in value." Our definition of significant might differ from Donald Trump's.

We encountered a few other glitches, but nothing we couldn't overcome. It took about two hours to create one will, not including power of attorney documents. But one could spend a week reading the background files.

One of WillExpert's handiest features is that it stops you from falling into common estate-planning traps. When my wife tried to name her sister, who lives in Mexico, as her executor, the program warned: "Naming an executor in another country not only complicates the administration of your estate assets after your death, it can also result in additional taxes."

To minimize conflicts, the program also recommends the user "keep the distribution of your estate as simple as possible." That means leaving most of your assets in the estate "residue," which is what remains after paying debts and other obligations and making specific gifts.

One estate-planning lawyer who examined our sample will was impressed -- to a point.

"It's very comprehensive. It's one of the best do-it-yourself ones I've seen," said the lawyer, who spoke on the condition of anonymity.

His main concern was that people may not fully comprehend the documents they produce.

A lawyer can explain the legalese, and also navigate through the many twists and turns of estate law, anticipating any problems before they arise.

Others gave the will mixed reviews.

Wendy Templeton, vice-president of the estate planning group at BMO Nesbitt Burns, said it was drafted in an "unusual" way, making it "difficult to sort out what it means."

But it includes a definition section, which is "a good idea. You don't often see that in a will."

Sandra Foster, author of You Can't Take it With You: The Common Sense Guide to Estate Planning for Canadians, noted the absence of a few features that are sometimes desirable in a will.

It had no clause for mediation and arbitration to keep disputes out of the courts. Nor did it provide for a spousal trust, which is a way to minimize taxes after one spouse dies. Generally, she considers do-it-yourself wills to be "penny-wise and pound-foolish."

Although a kit saves money up front, it can't replace a human being who puts together a comprehensive estate plan taking into account taxes, insurance and each person's unique family and job situation. That's not to say kits are a waste of money, she said.

"Even if you decide to have your will done by a lawyer, having worked through the exercise makes you better informed. If you use it as an educational tool, it has merit."

Sandy Cardy, vice-president of tax and estate advisory services at Mackenzie Financial, said a homemade will may be appropriate in the most straightforward situations, such as a married couple with no dependents who leave everything to each other.

But anything more complicated requires professional advice, said Ms. Cardy, author of the just-released estate-planning book, The Cottage, The Spider Brooch, And The Second Wife.

"There are all kinds of things that an estate lawyer will prompt you to think about. . . . A software package isn't going to bring up some of these issues," she said.

"I'm really not in favour of will kits. I've seen a lot go wrong, and we're going to see in the next decade, with all the inheritances that are coming into the boomers' hands, the potential for huge sibling rivalry and disputes and fractured families."

Some estate planning lawyers say do-it-yourself wills are actually good for business. Les Kotzer, co-author of The Family Fight: Planning to Avoid it, compares using a homemade will for a substantial estate to "putting a plywood door on the front of a beautiful home."

"I do free will reviews, and a lot of the wills I review are homemade wills. . . . I find a lot of errors," said the lawyer, based in Thornhill, Ont.

Intuit doesn't recommend WillExpert for everyone. For individuals with disabled dependents, complex investments or private business holdings, for instance, the program advises them to consult a lawyer. In such cases, Intuit says it will refund their money.

But that leaves plenty of other potential customers. About 56 per cent of Canadians aged 20 to 59 do not have a will, said Tom Forbes, Intuit's business unit manager for WillExpert.

The company has sold tens of thousands of copies of the software, which was developed over the course of a year by lawyers in all provinces except Quebec, where WillExpert is not sold because of the province's different laws.

Intuit isn't surprised that some estate planning professionals are skeptical, he said. "We had exactly the same sort of response [from accountants] when we first developed tax software."

Nowadays, a majority of tax returns are prepared using software. Could lawyers one day rely on programs like WillExpert to do much of their estate planning work?

"It will take time but I can't see them being any more difficult to win over than accountants have been in the past," Mr. Forbes said.