Contents:
- Preparation of wills by Lawyers
- Overview
- In General
- Duty where testator to disinherit a dependant
- Duty of a lawyer to test the capacity of a testator In the case of Collicutt Estate, Re (1994), 134 N.S.R.(2d) 137; 383 A.P.R. 137 (C.A.), an 85 year old testatrix made wills in 1982 and 1985 making specific bequests to friends and relatives and leaving the residue to charity – In 1988, the testatrix executed a new will, naming a neighbour as sole beneficiary and executrix – The testatrix did not comprehend the extent of her property – She had over $200,000 in the bank, yet worried that she would be thrown out of the nursing home because she could not pay to be there – The sole beneficiary’s involvement in preparing the new will was suspicious – The lawyer drafting the will did not properly inquire into the testatrix’s mental capacity – The Nova Scotia Probate Court held that the propounder of the will failed to prove testamentary capacity – The court was not satisfied that the testatrix knew and approved of the contents of her will – The Nova Scotia Court of Appeal affirmed the decision. In the case of Carvell Estate, Re (1977), 21 N.B.R.(2d) 642; 37 A.P.R. 642 (Prob. Ct.), the New Brunswick Probate Court referred to the duties of a lawyer in drawing a will for an elderly or infirm testator – The Probate Court referred to the tests which a lawyer should employ to test the testamentary capacity of a client – See paragraphs 48 to 57. Duty of a lawyer to make notes in cases of doubtful capacity
Preparation of wills by Lawyers
Compiled by Eric B. Appleby:
Overview
When preparing a will a lawyer has special duties to the client plus duties to third parties such as dependants of the client and the beneficiaries under the will.
In General
In preparing a will a lawyer has special duties that include: – the lawyer must in cases of doubt regarding testamentary capacity prepare notes regarding observed facts and conditions; and – where the testator’s capacity is in doubt the lawyer should consider obtaining an opinion regarding the testator’s capacity; and – the lawyer should be satisfied that the testator or donor understands the nature and consequences of the documents being signed; and – the lawyer should obtain instructions for a will directly from the testator and if the instructions are received from third parties, the lawyer should be satisfied that the instructions represent the wishes of the testator. – see Legal Ethics by Mark M. Orkin at page 102 and Professional Conduct for Lawyers and Judges (2nd Ed.) by Beverley G. Smith at chapter 3, para. 54.
In the case of Mathis Estate, Re (1989), 62 Man.R.(2d) 50 (C.A.), Monnin, C.J.M., of the Manitoba Court of Appeal stated that a solicitor who drafts a will is not required to find out to the penny what a prospective testatrix owns. He must know the nature of the assets but need not know the exact total. To properly draft a will a solicitor should know the nature of the assets, namely, whether they are real estate, bank accounts, stocks, bonds or various other types of investments – See paragraph 34.
Duty where testator to disinherit a dependant
In the case of Kuhn v. Kuhn Estate (1992), 112 N.S.R.(2d) 38; 307 A.P.R. 38 (T.D.), the headnote stated: The Nova Scotia Supreme Court, Trial Division, stated that it is incumbent upon solicitors, who take instructions for wills, to keep a record of their instructions and to advise a testator who plans to disinherit a spouse or child of the effects of the Testators’ Family Maintenance Act – See paragraph 42.
Duty of a lawyer to test the capacity of a testator In the case of Collicutt Estate, Re (1994), 134 N.S.R.(2d) 137; 383 A.P.R. 137 (C.A.), an 85 year old testatrix made wills in 1982 and 1985 making specific bequests to friends and relatives and leaving the residue to charity – In 1988, the testatrix executed a new will, naming a neighbour as sole beneficiary and executrix – The testatrix did not comprehend the extent of her property – She had over $200,000 in the bank, yet worried that she would be thrown out of the nursing home because she could not pay to be there – The sole beneficiary’s involvement in preparing the new will was suspicious – The lawyer drafting the will did not properly inquire into the testatrix’s mental capacity – The Nova Scotia Probate Court held that the propounder of the will failed to prove testamentary capacity – The court was not satisfied that the testatrix knew and approved of the contents of her will – The Nova Scotia Court of Appeal affirmed the decision.
In the case of Carvell Estate, Re (1977), 21 N.B.R.(2d) 642; 37 A.P.R. 642 (Prob. Ct.), the New Brunswick Probate Court referred to the duties of a lawyer in drawing a will for an elderly or infirm testator – The Probate Court referred to the tests which a lawyer should employ to test the testamentary capacity of a client – See paragraphs 48 to 57.
Duty of a lawyer to make notes in cases of doubtful capacity
In the case of Coughlan Estate, Re (2003), 227 Nfld. & P.E.I.R. 193; 677 A.P.R. 193 (P.E.I.T.D.), a 91 year old man (Coughlan) went to see a lawyer first to revoke a power of attorney and then to make his will – Although Coughlan had three children he wanted to leave his property to only two of them – The lawyer, sensing that the will could be contested, engaged two psychiatrists to comment on Coughlan’s capacity – The lawyer carefully questioned Coughlan and made detailed notes before concluding that he had testamentary capacity – The lawyer made sure that Coughlan’s daughter was not present when the instructions were taken – As the lawyer had sensed, the will was challenged on the basis of a lack of testamentary capacity – The Prince Edward Island Supreme Court, Trial Division, in finding that Coughlan had the requisite capacity, stated that it was impressed by the steps taken by the lawyer to satisfy himself that Coughlan had testamentary capacity – See paragraphs 132 and 133.
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This entry was last updated: February 13, 2017
Cite this entry
Legal Citations Generator| (2010, 03). Wills lawi.ca Retrieved 06, 2017, from https://lawi.ca/ |
| "Wills" lawi.ca. 03 2010. 06 2017 <https://lawi.ca/> |
| "Wills" lawi.ca. lawi.ca, 03 2010. Web. 06 2017. <https://lawi.ca/> |
| "Wills" lawi.ca. 03, 2010. Accesed 06 2017. https://lawi.ca/ |
| International, 'Wills' (lawi.ca 2010) <https://lawi.ca/> accesed 2017 June 13 |
- Article Name: Wills
- Author: International
- Description: Share this on WhatsAppContents:Preparation of wills by LawyersOverviewIn GeneralDuty where testator to disinherit a [...]