In my October 24, 2024 blog post, I highlighted the importance of working with a lawyer rather than relying on an online will kit. Today, let’s take a closer look at best practices for lawyers drafting a will, especially when an unequal distribution among beneficiaries is involved.

The Seguin v. Pearson, 2016 CarswellOnt 17438 case provides a powerful example of why meticulous documentation is essential. In this case, the deceased, Mr. Paterson, left most of his estate to his long-time common-law spouse, Ms. Pearson, rather than to his estranged daughters, which led to a legal dispute. The daughters argued that Ms. Pearson had exerted undue influence over Mr. Paterson

Seguin v. Pearson emphasizes several critical practices for estate lawyers to consider:

• When clients opt for an unequal distribution, ensure you record their reasoning in detail. Encourage clients to write a brief, personal explanation for their choices. This documentation can go a long way in supporting the will if it is later challenged.
• Your notes should cover not only the client’s specific instructions but also any observations of their mental state, independence in decision-making, and consistency in expressing their wishes.
• Meet with clients privately to confirm that instructions are genuinely theirs and free from undue influence. Document that these meetings occurred independently of any interested parties.
• For elderly clients or those with health concerns, make thorough notes on their capacity. Open-ended questions can help gauge their understanding of the will’s terms. If you have any concerns, consider recommending a professional capacity assessment before moving forward.
• If a will’s distribution could surprise or upset family members, discuss this with the client. Consider additional steps, like videotaping the signing or bringing in independent witnesses, to add further validation to the process.

Conclusion

The lessons from Seguin v. Pearson remind us that careful note-taking is invaluable in will drafting, particularly with complex or unequal distributions. By following these practices, lawyers can better protect a client’s wishes, uphold the validity of their wills, and reduce the risk of family disputes.