Resolutions to Avoid Wills and Estates Claims

  • I will ask more probing questions when meeting with a client to prepare a will: Too many lawyers are not asking the questions that could uncover facts that could cause problems later, or making clear to the client what information they need to provide. Was there a prior will? Are all the beneficiaries identified correctly? What about gift-overs? Were all assets identified, and how are they registered? Was there a previous marriage? Ask, ask, ask. And then do a reporting letter to confirm everything that was discussed.
  • I will not act for family members or friends: We see claims where lawyers didn’t make proper enquiries or take proper documentation because they assumed they had good knowledge of their family or friends’ personal circumstances. It’s best not to act for them, but if you must, treat them as if they were strangers. And remember if a claim arises it will likely not be from the friend or family member, but from a disappointed beneficiary with no personal relationship with you.
  • I will confirm as best I can the capacity of the testator and watch for undue influence: With greater numbers of elderly clients, lawyers need to be vigilant about these issues. Meet with the client separately from those benefiting from a will change, and have written proof that the client understands what they are asking and the advice you’ve given. And while it is difficult to be completely certain of capacity, be sure to document what steps you’ve taken to satisfy yourself that the client’s capacity has been verified.
  • I will take the time to compare the drafted will with my notes: It sounds like obvious advice, but we see claims where the final version of the will did not adequately reflect the instructions that the client gave, or overlooked some important contingencies. Many of these errors could have been spotted by simply reviewing the notes from the meeting with the client. It can help to have another lawyer proofread the will, or set it aside for a few days and re-read it with fresh eyes. When you review it, consider the will from the position of the beneficiaries or disappointed would-be beneficiaries. Ask yourself if you were going to challenge this will, on what basis would you do so?
  • I will review the completed will with my client: Once you have a final draft of the will, meet with the client to review and explain the will’s terms.
  • These resolutions were taken from “New Year’s resolutions for a better practice and a new you” which can be found in the December edition of LAWPRO Magazine.

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