Tag: deathbed wish
It’s 8:30 am, you’ve just entered your office, and you get a call from the common-law spouse of one of your long-term clients. It’s bad news – your client is in palliative care and has a will from 2001 that he urgently needs to update. Time is of the essence.
You and your assistant can squeeze in time late in the day to see the client at the hospital. But you know it’s a tricky situation that’s fraught with potential problems. Here are a few steps to consider that could protect you and your client before you head bedside.
- Make sure you have the expertise they need: On the initial call, be sure to ask specific questions about what the client needs done. If there are trusts or other complex arrangements involved, assess whether you have the expertise to assist. If death is imminent, the last thing your client can waste is time in trying to line up another lawyer. So do your due diligence up front.
- Assess capacity: Capacity issues could be front and centre for clients who are close to death. If possible, contact an attending doctor, explain the legal test for capacity and ask them to confirm his or her opinion in writing as soon as possible, even on an interim basis by email.
Learn more about capacity issues here: https://estatelawcanada.blogspot.ca/2010/12/when-is-doctors-opinion-on-capacity.html
- Talk one-to-one: You need, and must insist on, time alone with your client, both to do your own capacity assessment and to minimize any unsubstantiated allegations of undue influence. If the situation is at all suspicious, you have a duty to inquire to satisfy yourself that the client is fully acting on their own accord. This is especially important if the client has had multiple marriages or common-law partners, or has been estranged from family members. If you are not satisfied, you may choose to decline to act.
- Take notes and/or video: Your notes could potentially be used as evidence in a will challenge or solicitor’s negligence action, so be sure to set out the basis for your opinion on issues such as capacity and undue influence, rather than simply stating a conclusion. Consider having a junior lawyer attend with you, to provide a more complete base of evidence. Videotaping the interview may also be helpful, as it can provide important evidence if the will is ever challenged.
Finally, if you have older clients who have indicated a need to revise their will, be proactive. Send them this link and encourage them to act now to avoid the potential drama and perils of a deathbed will: http://globalnews.ca/news/1105176/the-mortality-of-deathbed-wills/
Thanks for reading,
When a writer starts to come off the rails, you expect skid marks and broken glass. With Nabokov, naturally, the eruption is on the scale of a nuclear accident. – Martin Amis, of The Guardian, writing about Vladimir Nabokov’s later literary works
In March of 2008, David M. Smith posted a blog documenting the decades-long Sisyphean struggle of Dmitri Nabokov, son and sole surviving heir of Vladimir Nabokov, with his father’s deathbed wish to have his last unpublished work, The Original of Laura, destroyed. By all accounts, Nabokov was an odd duck; he wrote Lolita in the backseat of a ’46 Oldsmobile and instead of paper, he preferred to write on index cards. When Nabokov died, Laura was less than one-half complete, and the fragments had been scrawled in pencil on 138 index cards, in no particular order, which he instructed his wife to destroy. However, his wife died in 1991 having not yet carried out her husband’s last wish. After 30 years of ‘agonized dithering’, Dmitri finally made the decision to publish The Original of Laura. A 5,000 word first glimpse appeared in Playboy last month. [Apparently Nabokov Sr. was a fan of the mag’s cartoons.]
Book reviewers everywhere have cast their judgment on the work, and more importantly, on the ethics of Laura’s ultimate publication. Alexander Theroux of The Wall Street Journal referred to Laura as ‘ever more hallucinatory’. Novelist Aleksander Hemon, writing in Slate likened the unfinished work to the ‘musty air of an estate sale’ in that it was brought out ‘’in the hope that there might appear a buyer for these sad objects’. Michael Dirda of the Washington Post concludes, like many others, that Laura is for Nabokov ‘completists’ only.
Will Laura grace your wish list this year?
Jennifer Hartman, Guest Blogger