Photo credit: Matthew Chen
Trevor Todd
Wills Drafting: The Myth of the “Simple Will”
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t must be stressed that any document that has consequences as permanent and far-reaching as a Will can never be “simple.” Even a straightforward Will can be fraught with drafting problems and potential liability. A Will speaks from death and cannot be altered after death. Thus Wills can be viewed as potential “time bombs” of liability. Although sections 58 and 59 of the Wills, Estates and Succession Act now allow an opportunity to correct errors, to confirm what the testator really meant, to fill in the gaps, or to modify the ambiguous, a small drafting error can create an ambiguity that may take years to resolve in the Courts. A Will is a very personal document, quite literally, a testator’s last word about how his or her estate is to be disposed of. The only constraints on the testator’s wishes are public policy and the law. If neither is contravened, the testator can make almost any type of Will.
Duties of the Wills-Drafter The Wills practitioner has several important duties, including the following. 1. Spending sufficient time to properly canvass with the client
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TABLE OF CONTENTS
A Will is a very personal document, quite literally, a testator’s last word about how his or her estate is to be disposed of. his or her instructions, and then understanding those instructions precisely after giving appropriate advice with respect to same 2. Translating the instructions into testamentary provisions that are valid and clearly express the testator’s intentions 3. Gathering all the information required to properly prepare the Will and to give effect to the testator’s wishes 4. Taking into account other documents to which the testator is a party, such as those dealing with assets that pass outside of the estate, and applying legal principles that may affect the provisions of the Will Simply put, it is the Wills practitioner’s duty to ask the right questions and draft the Will properly in accordance with the client’s instructions.
Fees 1. Fees should be based on the practitioner’s actual time and not the supposed “going rate.” The Society of Notaries Public of British Columbia
2. The practitioner should explain to the client the amount of time it properly takes to prepare a Will, the amount of expertise required for same, the risk of liability, and the value of the assets that are being dealt. That will help persuade the client that the cost may be higher than he or she wishes to pay, but that it is still good value in the “big picture” of things. It should be stressed that the Will is dealing with the client’s lifetime accumulated assets. 3. If the client is unwilling to pay, then it is open to the practitioner to refuse to do the work. 4. If the practitioner accepts the work, he or she accepts the responsibility of doing it properly and promptly.
Getting the Necessary Information From The Client Clients frequently attend at the Willdrafter’s office with firm instructions about how they want to dispose of their estates. It is the Will-drafter’s duty to properly examine and scrutinize such instructions because many of them may be neither practical nor advantageous to the interest of the estate or to the beneficiaries. The Will-drafter must educate the client and explain to him or her the nature and consequences of the proposed testamentary provisions. Volume 27 Number 4 Winter 2018
