Most Common Issues With Self Drafted Wills

Before hiring a lawyer, many people consider the option of self-drafting their legal documents: wills, trusts, etc.

The internet has troves of legal resources and online do-it-yourself websites where users can draft their own legal documents.

As a lawyer, I obviously have a biased interest in advising you to write your will with a lawyer instead of doing it online.

But also as a lawyer I’ve seen self written wills turn into train wrecks in probate.

In my experience, the only self written wills I’ve dealt with involved fraud and undue influence.

DIY wills are common when a non family member wants to get something out of a hospitalized elder they’re close with. They know they can’t go to a lawyer because the lawyer would likely say the elder did not have the mental capacity to write a will. So, some non-relatives will write the wills themselves.

You can purchase DIY wills at Staples for $20 or online for ~$100.

Self-written wills can and often are fraught with issues.

The companies that sell them provide one-size-fits-all documents. They don’t account for state specific laws. This can cause a huge issue with wills.

A will may seem like a simple legal document but if you don’t overlook state specific laws that lawyers are privy to, you can really mess up a will.

One thing I see is the drafter signing as a witness. If you sign as a witness to a will where you receive a gift, you are disinherited from the will. If you have a close buddy sign it, you can be disinherited. It is extremely important that the witnesses to a will are “disinterested” meaning they have no stake in the matter – non family and not in the will.

Another issue is undue influence. If you’re caring for an elderly person they may not have the capacity or the right state of mind to sign a will.

If you draft a will for someone, proving a lack of capacity may be at issue in a trial. If you have a lawyer do it, with two witnesses and a notary, proving lack of capacity will be much more difficult than a self-drafted will printed online.

If you draft your own will, your family or relatives may try and argue that you were coerced by someone else, maybe by the benficiary who received the most out of your will.

This brings up the same issues we just talked about – you won’t be around to show the court that you had mental capacity. The contesters or objectors will have an easier time showing undue influence with a self written will rather than one written by a lawyer.

Another issue is that people don’t know what to include in a will. Things like testamentary trusts, guardianship provisions, executor nominations, etc…

With something as important as your legacy, I highly recommend using a lawyer to write your will or trust.

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