Protecting Your Estate Plan.
In today’s post, I hope to demystify some of the practice and procedures that take place in law offices during the estate planning process. This may help you understand why a lawyer is making certain requests of you.
No estate planning lawyer wants their meticulously thought-out and drafted estate plan to be ruled invalid. Challenging the validity of a Will has become a very specialized area of law in Ontario. Sometimes the impetus for challenging a Will can be motivated by genuine concern. Other times that motivation is simple greed on the part of someone thinking they should have gotten more of an inheritance than they received. Whatever the reason for challenging the validity of a Will, lawyers must take steps to ensure that the Will can withstand the highest scrutiny of not only the documents themselves but also the measures taken during the planning process. It is impossible to know which estate plan will ultimately be challenged; therefore, lawyers must treat all estate planning matters with a high degree of care.
Some of the common ways people challenge the validity of a Will include:
1. The testator lacked the necessary testamentary capacity;
2. The testator was unduly influenced by another party;
3. The formalities of execution of the Will were lacking;
4. There was insufficient knowledge and approval of the Will by the testator; and
5. The Will or a clause in the Will are contrary to public policy.
Estate planning lawyers routinely use checklists during the estate planning process to ensure that all necessary steps are taken. Additionally, many lawyers ask a client to fill out a questionnaire prior to a meeting to discuss the estate plan. This measure helps to ensure that the lawyer has canvassed the testator for all of the pertinent information. In my practice, I use checklists all of the time; however, I understand that asking a client to fill out a questionnaire prior to meeting provides another opportunity for procrastinating your estate plan. I get it; I do not particularly like filling out questionnaires either. This is why I give you the option; you can either fill out a questionnaire prior to our meeting or you can simply attend the meeting at which time I will ask you all of the questions contained in the questionnaire. It is my experience, however, that at least looking over the questionnaire prior to our meeting makes for a more efficient meeting.
When going through the estate planning process, I do not take instructions from anyone who is not the person who is planning their estate. Furthermore, when meeting with someone planning their estate, I only want that particular person (or two people in the case of a joint retainer) to be in the room when going over the estate plan. I understand that in many cases family and friends only want to help the testator by being in the room. Regrettably, having a third-party present during the estate planning process invites accusations of undue influence.
When a lawyer is making a request of you during the estate planning process, he or she is making this request because they want to ensure your estate planning objectives are met. A Will that is declared invalid does not ensure that your objectives are met. Unfortunately, estate planning lawyers do not get a second chance after you have passed away; this means they must do it right the first time during the estate planning process.
Below, please find a PDF of the Wills Intake Questionnaire.
If you have any questions about the estate planning process or anything mentioned above, please do not hesitate to contact my office. I offer a free consultation for your estate planning matter.