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BC Notaries Speak Your Language
Be precise in your description of assets to avoid ambiguities. Check carefully for inconsistent clauses. Check to see that no intestacy or partial intestacy has been created. I once litigated a homemade Will where the testatrix included a specific clause stating she did not wish her brother to ever share in her estate by reason of bad past behaviour. She executed the Will without having included a residual beneficiary clause and thus created a partial intestacy. The effect was that her next-of-kin, namely, her brother, inherited. Sufficiently identify each beneficiary and record his or her contact information. Charities can be a particular problem, as it is necessary to understand the structure of the charity and to ascertain which part of the charity the testator wishes to benefit, as well as to ensure the charity’s name is stated correctly. If possible, the charity should be contacted to ensure accuracy. Leaving a bequest to “charitable and educational institutions” will undoubtedly lead to much litigation among various charities and education institutions. Be consistent in the words you use. Try not to include a gift of a specific parcel of property to a beneficiary as there is a good likelihood the testator will not own the property at the time of his or her death. A better way to accomplish such an intention is to use a clause such as “to transfer to Mary, if she survives me, whatever house and property I own at the time of my death,” or such similar-type wording. Only attempt to do the type of Wills with which you are completely experienced and are totally comfortable doing. Review the Will clause by clause very carefully with the client. It should never be a cursory review. It may be helpful to paraphrase each clause to the client in simple
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20. terms, as many clients will not really understand what most of the clauses mean. It is suggested that where possible and practical, email, fax, or mail a copy of the
Will to the client to review prior to seeing him or her in your office.
That will give the client time to consider and reflect on the Will and to make any changes he or she considers appropriate. That is preferable to the client attending at your office and requesting changes to be made on the spot, as such changes are often rushed.
Use technology but beware that it sometimes does strange things, like leave out paragraphs and make other such unexplained mistakes.
Do not rely solely on a checklisttype Will instruction sheet. Make real notes, including observations confirming you probed the Willmaker’s mind to check for mental capacity and noted his or her statements as to next-of-kin and the value of assets. On completing a Wills file, avoid using a form reporting letter that has clauses that do not relate to the particular instructions. Conclusion I again stress there is no such thing as a simple Will. While a Wills practice can be enjoyable and rewarding, the draftsperson can never let his or her guard down for one instant regarding the myriad potential problems that can arise in this type of practice.
The client needs firm advice and guidance throughout the taking of instructions and again during the review of the Will at the time of execution. s Trevor Todd restricts his practice to estate litigation. He has practised law in Vancouver for 45 years.
BC Notaries around the province offer many noncontentious legal services (see pages 10 and 25) in an impressive variety of languages.
