Bullet-Proofing a Will

February 28, 2008 Hull & Hull LLP Continuing Legal Education, Estate & Trust, TOPICS Tags: , , 0 Comments

What are some of the "red flags" to be wary of in the course of a retainer to prepare a Will?  Corina Weigl considered this issue in an article she wrote for the 2007 LSUC Six Minutes Estates Lawyer (find it here) titled "How to Bullet-Proof Your Will".  By far the most typical "red flag" arises in the context of third party involvement, such as where a close friend or relative (commonly a child of the testator), contacts the lawyer directly asking for advice in respect of the testator’s estate (i.e. “My Dad needs a will drawn up”). This is a common scenario for most estate planning practitioners. The lawyer should remind the third party who the "real" client is and that best practice demands that he or she deal with the testator (as opposed to the third party) directly.  Lawyers are advised to hold meetings in private with the "real" client; to prepare detailed notes of telephone conversations and meetings with the "real" client, and to scrutinize motivations in cases where there are blatant departures from the provisions of former Wills. Another “red flag” is the unequal treatment of beneficiaries. To avoid the possibility of a dispute down the road, clients should be clear in expressing their wish to exclude an obvious beneficiary (i.e. leaving out 1 of his 3 kids). The lawyer may ask for an explanation of why the person is being treated differently, and the lawyer will likely take notes. Unequal treatment inevitably leads to family friction and may up the chances of a will challenge. Lastly, it is a lawyer’s duty to be satisfied that their client has the requisite mental capacity – once again the lawyer is advised to take notes and when in doubt, consult expert opinion.

Sarah Hyndman Fitzpatrick

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