25 TIPS FOR DRAFTING BETTER WILLS and MINIMIZING LIABILITY
1. Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a Will so as to ensure that the client’s lifetime accumulated wealth will pass to his or her chosen heirs.
2. When the Will is ready for execution, read it through a number of different times, each time assuming a different scenario involving contingencies relevant to the Will.
3. Do not be a dabbler. If you do not routinely draw Wills, then consider not doing them at all. Be very careful about using precendents, especially if you are “cutting and pasting” to create one.
4. Use a checklist when taking instructions. The three Law Society Practice Checklist Manuals are an excellent start, and can be modified to suit you .
5. Get all the necessary information about your client’s personal circumstances , including special situations such as a disabled child. It is essential to obtain complete information about the client’s estate, including details about the nature in value of each asset, its location, and how it is registered.
6. Review copies of earlier Wills, insurance policies, separation agreements, marriage contracts, or any other documents that may affect the client’s estate.
7. Take the necessary time to satisfy your responsibility to ensure that the client understands what the Will says, what it means, and that the client approves its contents. It is essential to go through the Will clause by clause with the client. The lawyer should attend upon the client to make sure that the Will is properly executed. If this is not possible, the lawyer has a duty to make sure that when the original of the Will is sent out for signature, it is accompanied with a very clear letter of instructions on how to execute the Will. You have a further obligation to subsequently ensure that the Will is in fact executed and is put in safekeeping.
8. It is essential to keep very careful notes of Will’s instructions and all communications with Will’s clients. If there is a mistake or an ambiguity and the drafting, it may be these notes that will determine the construction that the court will put on the Will. Notes are especially crucial if there are any unusual circumstances surrounding the Will. A few examples of this might include elderly or infirm testators, blindness or deafness, poor language skills, deathbed Wills, or testators whose Wills might be subject to challenge all the basis of undue influence or lack of capacity.
9. Utilize good legal assistants, but do not place too much reliance on them. Ultimately you cannot delegate your own responsibility to ensure that the Wills are prepared correctly.
10. Always file a Wills Notice with the Division of Vital Statistics. Although it is not mandatory, you should do so, particularly in light of the development of liability in favour of disappointed beneficiaries.
11. Maintain a Wills index with the name and address of the testator, the filing number of the Will file, the name of the executor, the date of execution of the Will, and the Will’s location.
12. Deliver a final letter to the client confirming the location of the Will, the date that it was signed, and reminding the client to review the Will from time to time. It is also essential to make the client aware that marriage revokes the Will and that divorce may affect the validity of some of the provisions of the Will.
13. Probe the testator’s mind by asking detailed questions about assets and the like, with no prompting or help from others, to ensure that there is sufficient mental capacity to prepare a Will. If there is any doubt, a medical opinion should be obtained, after firstly explaining the legal test for capacity to the doctor, as it is a legal test, not a medical one.
14. Always take instructions in the absence of potential beneficiaries or executors.
15. Record detailed reasons why any person who would be an appropriate object of the testator’s bounty is being omitted from the Will, and then consider the preparation of a detailed memorandum to the Will in conjunction with your notes.
16. Try not do codicils. It is too easy to make a mistake. Never do more than one codicil to a will- instead, prepare a new will.
17. Do not use the words issue, per stirpes, per capita, and instead use words like child/children and grandchild/grandchildren.
18. If a charity is a beneficiary in a Will, then it is imperative to do two things:
(i) understand the structure of the charity, and obtain the testator’s instructions on which part of the charity her or she wishes to benefit; and
(ii) ensure that the name of the charity is correct. The easiest way of understanding the structure of the charity and finding out its proper name is to telephone the charitable organization and explain your inquiry relates to a gift made by Will, and to speak with a person authorized to give you the information. See also each year’s Canadian Donor=s Guide for assistance.
19. Only sign one original, and make it clear that a copy is, in fact, a copy.
20. Use detailed memorandums to explain why certain beneficiaries are not being provided for, such as in a Wills Variation situation. Set out the reasons in detail, and try to ensure that the reasons set out are factually accurate, and not merely vindictive and mean spirited.
21. Do not under any circumstances attempt to prepare a Will that is over your head or that you should not be preparing due to restrictions on your practice, i.e., Notaries doing Wills with discretionary trust provisions. If in doubt, refer it out should be your motto.
22. Try to use percentages, rather than specific amounts, and check to see it all adds up to %100..
23. Ensure that the executors have sufficient powers to carry out their job. For example, if the testator has a business, then include powers to operate the business, such as the power to order inventory. Otherwise the trustee may only be able to operate the business much like a receiver, unless appointed special powers by the court, on application.
24. Do not include an RRSP designation clause, or revocation of an RRSP clause in a Will.
25. Stress to clients that proper will preparation is the corner stone of basic estate planning, that should be taken seriously, and treated accordingly, considering that a person’s life time accumulated assets, together with family, are at stake.