What Litigators Look For In Will Drafters Files
R. Trevor Todd
Presented November 15,2014 at the BC Canadian Bar Conference in Scottsdale Arizona
I would be remiss in any discussion regarding the taking of will instructions, especially from the elderly and frail, not to start with a wise quote from former Southin JA. in Chalmers v. Uzelac 2004 BCCA 533
“ Every solicitor who, as part of his or her practice draws wills, should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions, especially at pages 318-321.
 That duty is owed not only to those who might, or ought to be, objects of the testator’s bounty but also to the testator, for only the solicitor can be the testator’s voice from the grave; the solicitor discharges that duty by making proper inquiries of the testator at the time of the making of the will and by taking and preserving proper notes of the responses and of any observations relevant both to capacity and to knowledge and approval of the contents of the will. The reason for the latter obligation ought to be obvious but, lest it is not, I state it: How can a judge put confidence in the testimony of a solicitor who says, years (here 9) after taking instructions, but keeping no notes of those instructions, that the testator said this or that as the reason for changing an earlier will?”
What follows is an extract from the Murphy head note and a comment from Friesen and Friesen, in addition, and must say, that if will-makers did follow the outlines of Murphy v Lamphier, and many like decisions, a bottom feeding scum sucking estate litigator like myself could be hard pressed for work.
“It is an error to suppose that, because a person can understand a question put to him and give a rational answer, he is of sound mind and capable of making a will: the competency of the mind must be judged by the nature of the act to be done, and from a consideration of all the circumstances of the case.
The grand criterion by which to judge, whether the. mind is injured or destroyed, is to ascertain the state of the memory. Memory affords all the materials on which to exercise judgment and to arrive at a conclusion or resolution.
In the case of a person enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, a solicitor called in to prepare a will does not discharge his duty by simply taking down and giving expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property; and, in dealing with a person needing protection and advice, it is important for the solicitor to find out if there be a former will, and its nature, with a view of getting at the reasons for any variations or changes therefrom, if such changes be contemplated.
The notes of haste, stealth, and contrivance attached to this transaction, and were not removed by the evidence.”
The duty was similarly described by Kroft J. in Friesen v. Friesen Estate (1985) 33 Man.R.(2d) (Q.B.) at para 77: as follows:
“6. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.
7. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.”
SUGGESTIONS TO AVOID POTENTIAL LIABILITY
- Take written detailed notes and date them. Consider typing them and providing your client with a copy.
- 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.
- 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. (Ask the “what ifs?”)
- Do not be a dabbler. If you do not routinely draw Wills, then don’t do them at all.
- Use a checklist when taking instructions. The Law Society Practice Checklist Manuals and PLTC materials are an excellent start, and can be modified to suit you . I always use it when I cross-examine a lawyer or Notary. It often makes them look incompetent if they have not followed a checklist.
- 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 and value of each asset, its location, and how it is registered.
- Review copies of earlier Wills, insurance policies, separation agreements, marriage contracts, or any other documents that may affect the client’s estate.
- 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.
- It is essential to keep very careful notes of Will instructions and all communications with Will clients.
- Utilize good legal assistants, but do not place too much reliance on them. Ultimately you cannot delegate your own responsibility to ensure that Wills are prepared correctly.
- 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.
- Maintain a Wills index with the name and address of the testator, the number of the Will file, the name of the executor, the date of execution of the Will, and the Will’s location.
- 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 advise that divorce or separation may affect the validity of some provisions of the Will as per WESA.
- Probe the testator’s mind to ensure that there is sufficient mental capacity to prepare a Will. If there is any doubt, a medical opinion should be obtained. Bear in mind, however, that capacity is ultimately a legal test, not a medical one.
- Always take instructions in the absence of potential beneficiaries or executors.
- 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.
- Try not do any codicils. It is too easy to make a mistake.
- Do not use the words “issue”, “per stirpes”, “per capita” – use instead “child”, “grandchild”.
- 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 speak with a person authorized to give you the information. See also each year’s Canadian Donor’s Guide for assistance.
- Only sign one original, and make it clear that a copy is, in fact, a copy.
- Use memorandums to explain why certain beneficiaries are not being provided for, in situations where a cause of action for a Wills Variation action could arise. 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.
- 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.
- Try to use percentages, rather than specific amounts, and make sure the total equals 100%.
- 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.
- Do not take instructions from a testator where you are relying on an interpreter where the interpreter is a potential claimant to the estate.
- Most importantly, make written observations of your opinion of the client`s testamentary capacity, after probing the mind for the entire interview, but “vigorously” for at least 15 minutes.
AND DON’T FORGET THE WESA STUFF
Section 58 of WESA gives the court the power to remedy defective formalities of execution that might otherwise have defeated the will maker`s testamentary intentions. What is interesting is that the section now allows the court to look at any `record, document or writing or marking on a will or document`in order to determine and give effect to the will maker`s intentions.
Since the range of documents that the court may now consider is quite broad, including electronic documents and potentially solicitors’ notes and even a signed draft will, it makes it all the more important for the will maker to keep detailed notes of the will maker’s intentions, instructions, mental clarity and ability to address the necessary issues required to sign a power of attorney.
In addition, the new definition of spouse both in WESA and in the Family Law Act is now quite complicated and may require solicitors to investigate the nature and extent of the person’s relationship with a partner, including discussions of such issues as a possible intention to separate, should the matter become relevant at a later challenge of the Will
Mental Capacity Requirements
We have all heard the words of Banks v Goodfellow and many cases that followed relating to the degree of mental capacity required, but the legislatures’ enactment of the Power of Attorney Act, I would now submit, should be substituted for the requirements of what capacity is required for a testator to have sufficient capacity to prepare both a will or a power of attorney.
Prior September 2011 and the introduction of this legislation, the BCCA In Egli had ruled that one really only needed to know what a power of attorney is, and that it required a lower standard of capacity required than for a will.
In light of the requirements of this statute, that decision can no longer be correct.
Section 12 of the Power of Attorney Act specifies that an adult may not make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.
“12 (1) An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.
(2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:
(a) the property the adult has and its approximate value;
(b) the obligations the adult owes to his or her dependants;
(c) that the adult’s attorney will be able to do on the adult’s behalf anything in respect of the adult’s financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
(d) that, unless the attorney manages the adult’s business and property prudently, their value may decline;
(e) that the attorney might misuse the attorney’s authority;
(f) that the adult may, if capable, revoke the enduring power of attorney;
(g) any other prescribed matter.”