A Lawyer's Duties When Taking Will Instructions

If you meet with a lawyer for the first time to do a will, you may have a very different expectation than your lawyer of how your interview will go.

I now like to explain my process at the outset of the first meeting to avoid misunderstandings, but I have not always done so. My practice is to ask my new estate planning clients for information about their families, and finances, before asking them where they would like their wealth to go on their death. In some cases, when I have not explained my process at the outset, I have had clients say things along the lines of "Why are you asking me all this? Can't I just tell you what I want, so that you can write it down?"

To be sure, part of your lawyer's job is to express your wishes in clear language so that they may be carried out. But, your lawyer should also advise you of your various estate planning options. Your will is just one estate planning tool, and you may be well advised to consider other tools such as trusts, life insurance declarations and RRSP designations. Even if your main tool is your will, there may be several ways to structure gifts in your will, some of which may have tax or other advantages over others.

In the vast majority of cases, the capacity of the person who makes a will (the "testator") is never in issue. But once in a while, someone does challenge a will by saying that the testator did not have the mental capacity to make the will. When a will is challenged, the court will look to evidence from the lawyer who took the instructions, and drafted the will to determine if the testator had a sufficient understanding of his family and affairs, and of the nature and consequences of making the will for the court to uphold the will.

In those cases when capacity is put in issue, Canadian courts have been clear that it is not enough for a lawyer to merely write down his or her client's wishes. The lawyer has a duty to ask appropriate questions to determine that the client has capacity to make a will. Although the case is approaching a hundred years old--and the language and attitudes toward aging reflect that earlier time--Chancellor Boyd's words in Murphy v. Lamphier(1914), 31 O.L.R. 287 (Ont. S.C.) at 318 about a lawyer's duties still apply today:

A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.