Straight Talk About Estate Planning – Honesty And Your Lawyer

January 20, 2015

By Fhara Pottinger

One of my greatest challenges as a lawyer is ensuring that my client has told me everything that I need to know.  My clients are generally not holding back out of malice or some intention to deceive me but rather a desire not to “waste my time”, to keep their costs down, or they just couldn’t imagine why I would need to know that particular piece of information. Sometimes I am given half-truths or edited information out of embarrassment as they don’t want to disclose a child they had before they married or perhaps advise that one of their children suffers from a mental illness.

This is particularly true in Estates files where the dynamics of the family and family relationships are relevant. It is important that I have that information so I know how to best draft your Will, advise as to what options are available to meet your family’s needs and, of course, prepare a document that meets those needs.

For example, if your children do not get along, naming them as joint Estate Trustees will not bring them closer. In fact, it is likely to tear them further apart and drain your Estate in the process of their dispute. If one of your intended beneficiaries relies on programs such as the Ontario Disability Support Program (ODSP), then a trust may be needed to ensure they receive the benefit of your bequest and continue to access that program.

Older clients, or those who are undergoing aggressive medical care, may be asked additional questions, especially if they are requesting that his/her lawyer make major changes to his/her will. This is not intended to be harassment, or a judgment on your competence, but it is related to competence.  Lawyers have an obligation to not prepare a will if we suspect there is an issue of testamentary capacity or that our client is not under undue influence of someone who will now benefit under the changes to the client’s will – to fulfill this duty, we ask standard questions plus engage in some general conversation. We are not expected to be expert capacity assessors, but we want to be able not only to say that we did our job, we want to help your will stand up to a challenge by providing information that shows it is truly YOUR will.

If you are accompanying a client to an appointment regarding their will, please don’t be offended if we ask you to sit in the other room as we are doing this to ensure that our clients are telling us their wishes and not being spoken for or directed by anyone else in the room.

So when you are going to meet with your lawyer about your Estate Plan, here are some of the things that your lawyer will need to know:

  • exactly what your assets are and we may ask for documented proof of those assets so it may be prudent to simply bring that information with you to your appointment;
  • do you have any assets in other jurisdictions such as other Provinces, the United States or internationally;
  • whether you have a prior will (and the location of that will);
  • tell me about your dependents, including disabled children;
  • tell me how your children and family get along especially if your spouse is not your children’s other parent (the step-family situation can become ugly even after decades of marriage);
  • disclose the status of past marital relationships, other children or stepchildren that you may have;
  • are you legally married to your spouse or is it a “common law” relationship;
  • who are the beneficiaries named in your RRSPs, life insurance policies and pension plans, and
  • tell us anything else you feel may have an impact on your family, either before or after your death, so we can provide you the best possible service and prepare a document that really meets your family’s needs at a difficult time.

Preparing a will can feel overwhelming but we are here to help you through this process. All we need from you is the information so we can help you prepare the best possible Estate Plan for yourself and those you love.