June 30, 2026
Just because you CAN prepare your own will does not mean that you SHOULD. As the saying goes “would you perform brain surgery on yourself?”
We have written before about the risks and potential extra costs associated with do-it-yourself wills.
One of our articles gives what we think are ten good reasons that the modest cost of a lawyer prepared will is a sound investment. We still think those reasons are all valid.
This article focuses on a particular aspect of why you should have a lawyer prepared your will.
THE ISSUE
Even where a homemade will is valid, that does not mean that the parts of the will which contain the gifts to your heirs will be enforceable.
THE CASE
This is illustrated by the Ontario Superior Court decision in McCubbin v. McCubbin.
That case involved a fight between a widow and her deceased husband’s children from a prior marriage – unfortunately, an increasingly common situation.
Everybody agreed that the homemade will was valid.
What brought them to court was a disagreement about how to interpret two clauses which dispose of the family home. They read:
MY WISHES IN THE EVENT OF MY DEATH: LOUISE MCCUBBIN (SPOUSE) SHALL ASSUME OWNERSHIP OF THE FAMILY HOME AND CONTENTS AT 19 MCNAB AVENUE.
IN THE EVENT OF LOUISE’S DEATH, JULIE MCCUBBIN (DAUGHTER) AND NICOLA MCGOEY (DAUGHTER) SHALL UPON SALE OF THE AFORESAID RESIDENCE, RECEIVE EQUAL SHARES IN ANY EQUITY REMAINING AFTER ALL OUTSTANDING DEBTS ARE PAID.
The widow argued that the first clause granted her full ownership of the home, and that she could deal with it as she saw fit, including selling it and keeping the proceeds. On this reading, the second clause only applied if Louise died before her husband.
The daughters argued that Louise was only given a life interest in the home, and that upon her death, the proceeds of sale of the home would be divided between the daughters.
The judge ultimately found in favour of Louise.
They applied what is called the “armchair rule”, by which the judge attempts to put themselves in the position of the deceased when he made his will, and to consider all the surrounding circumstances known to the deceased at that time.
This requires the parties to bring all of that evidence before the court, with all of the delay, cost, and stress which this involves.
It also means that courts no longer simply look at the “plain language” of the will.
Key to the result in this case was that, as a matter of law, the court cannot consider what is called “direct evidence of the testator’s intention,” namely testimony from a daughter and her husband, who claimed that the testator told them that the daughters would inherit the home. This principle of inadmissibility applies to prevent situations where somebody tries to displace the written will with an “oral will” based on that evidence.
There are exceptions to this principle where:
- the will describes two persons or things equally well; or
- where there is a drafting error in the will.
Neither applied in this case.
Even if the daughter’s evidence were admissible, the judge would not have accepted that evidence, because:
- it was completely self-serving, therefore unreliable; and
- there was a text from the daughter to Louise after the death, which was inconsistent with her evidence.
The judge was left with the language of the will. Specifically, the word “ownership.” Did this mean a complete gift, or a life interest?
The judge decided that even a non-lawyer would know the difference between the rights of ownership and a right to reside (which is what a life interest means). As the judge points out, if the deceased had only intended a life interest, the first clause would have read: “Louise McCubbin (spouse) shall reside at the family home.”
Louise was awarded full ownership of the home.
The daughters were ordered to contribute $9,000.00 towards Louise’s legal costs, in addition to paying their own costs. Louise almost certainly paid her lawyer more on top of the $9,000.00.
TAKEAWAYS
- invalidity is just one of the risks that arise from do-it-yourself wills;
- do-it-yourself wills increase the risks of disputes about the interpretation of the will;
- lawyers are trained to ask the correct questions, and to use clear drafting, to reduce that risk;
- estate litigation is expensive; and
- the cost of having a lawyer prepare your will is modest compared to the significant costs of estate litigation.
WHAT WEILERS LLP CAN DO TO HELP YOU
Our approach in will drafting is to take the time and ask the correct questions to accurately reflect your intentions. In reviewing an existing will, we have the knowledge to interpret the will and determine that intention or apply the other factors necessary to try to avoid estate litigation.
Need help reviewing or drafting a will in Ontario? Our estate planning lawyers are here to help. Give us a call and see if we are the right lawyers for you.