Wills: Don’t Wait, Do It Now

July 21, 2011

By Brian Babcock

Sometimes unexpected illness or declines in mental health occur before you can prepare your will or update it to reflect changes in assets or intentions. More often, however, delay is the result of inattention. The cost of this omission can be expensive court proceedings regarding the estate and unnecessary stress for surviving family members.

In Ontario, the Court of Appeal has specifically rejects the idea that a lawyer ought to prepare a will in all cases, especially where capacity is obviously doubtful. The mere fact that a person can understand and reply to questions is not by itself sufficient. Sound judgment is also required. One of the duties of the lawyer when a lawyer is asked to prepare a will for an obviously dying or failing client is to test that judgment. The lawyer should not prepare the will if his opinion is that the person lacks capacity. Part of the lawyer’s duty is to be satisfied that the client has a sound disposing mind.

This concept goes against the views of some family members. Some surviving family members, and some lawyers, argue that it is better to have the will made and fight about the capacity later. The Court has ruled that this is unfair to the beneficiaries under the prior will or the family entitled to inherit by law if there is no will. The cost of a court fight over capacity would reduce their inheritance. It might also needlessly create tension in the family.

The Court summarizes the requirements for capacity to make a will, based on previous cases, as being that the person making the will:

  • must understand the nature and effect of a will;
  • must recollect the nature and extent of his or her property;
  • must understand the extent of what he or she is giving under the will;
  • must remember the persons that he or she might be expected to benefit under his or her will; and
  • where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

The facts of any particular will dispute determine its outcome. There will still be situations where lawyers will prepare deathbed wills and simply take very careful notes of the evidence for and against capacity. There will also be situations where the issue arises early enough that medical advice as to capacity may be sought.

The best way to avoid the cost and upset common to capacity disputes is to prepare a will while still enjoying good capacity and review it regularly. This will reduce, if not eliminate, the need for a deathbed will, which is always a less desirable option. Your heirs will get more of your money, rather than lawyers.