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Difference between revisions of "LSLAP File Administration Policy for Wills and Estate (16:XIV)"
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LSLAP File Administration Policy for Wills and Estate (16:XIV) (view source)
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'''1. Interview the will-maker alone''' | '''1. Interview the will-maker alone''' | ||
This practice allows the interviewer to satisfy him or herself that the will-maker has testamentary capacity. The exception to the practice of meeting the client alone is where one is taking joint instructions from | This practice allows the interviewer to satisfy him or herself that the will-maker has testamentary capacity. The exception to the practice of meeting the client alone is where one is taking joint instructions from spourses for mirror wills. Should it appear that the instructions are not reciprocal, other than differing specific bequest of personal items (e.g. jewellery to daughter, tools to son) one should not take further instructions. Some lawyers will not take instructions for a new will from one of the parties if that lawyer had previously taken mirror or mutual wills instructions for both. Some lawyers will take unilateral instructions that conflict with the earlier mirror will, provided they are also given express instructions to inform the client’s spouse that new will instructions have been received. | ||
'''2. Ask non-leading, open ended questions to determine factors operating on will-maker’s mind''' | '''2. Ask non-leading, open ended questions to determine factors operating on the will-maker’s mind''' | ||
Examples of this type of questions include: | Examples of this type of questions include: | ||
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Again, this ensures what the will-maker tells the interview and wishes to include in his/her will truly represents his/her wishes. | Again, this ensures what the will-maker tells the interview and wishes to include in his/her will truly represents his/her wishes. | ||
'''3. Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust''' | '''3. Explore whether the will-maker is in a relationship of dependency, domination or special confidence or trust''' | ||
Examples of questions to ask include: | Examples of questions to ask include: | ||
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* Has anyone asked you for money? A gift? | * Has anyone asked you for money? A gift? | ||
'''4. Explore whether will-maker is a victim of abuse or neglect in other contexts''' | '''4. Explore whether the will-maker is a victim of abuse or neglect in other contexts''' | ||
When interviewing, the interviewer should be aware of the will-maker’s physical safety. If necessary and appropriate, refer the will-maker to support resources. | When interviewing, the interviewer should be aware of the will-maker’s physical safety. If necessary and appropriate, refer the will-maker to support resources. Sample questions to consider include: | ||
* Has anyone ever hurt you? Has anyone taken anything that was yours without asking? | * Has anyone ever hurt you? Has anyone taken anything that was yours without asking? | ||
* Has anyone threatened you? Are you alone a lot? | * Has anyone threatened you? Are you alone a lot? | ||
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'''5. Obtain relevant information from third parties when possible and if the will-maker consents''' | '''5. Obtain relevant information from third parties when possible and if the will-maker consents''' | ||
'''6. Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately | '''6. Obtain a medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately a legal test''' | ||
'''7. Compile a list of events or circumstances indicating undue influence. See section below for red flags.''' | '''7. Compile a list of events or circumstances indicating undue influence. See section below for red flags.''' | ||
'''8. Make and retain appropriate records whenever red flags are present''' | '''8. Make and retain appropriate records whenever red flags are present''' | ||
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== D. Undue Influence and Suspicious Circumstances == | == D. Undue Influence and Suspicious Circumstances == | ||
The British Columbia Law Institute’s list of red flags below may indicate the presence of undue influence on a will-maker. The list is non-exhaustive, and the presence of some factor does not provide an affirmation of undue influence. Use the list as a cautionary guide when preparing a will. Refer to the British Columbia Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide for more details on each of the facts listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | The British Columbia Law Institute’s list of red flags below may indicate the presence of undue influence on a will-maker. The list is non-exhaustive, and the presence of some factor does not provide an affirmation of undue influence. Use the list as a cautionary guide when preparing a will. Refer to the British Columbia Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide for more details on each of the facts listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | ||
Some examples of red flags that may indicate the presence of undue influence include: | Some examples of red flags that may indicate the presence of undue influence include: | ||
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* Will-maker experiences isolation due to dependence on a beneficiary for physical, emotional, financial or other needs | * Will-maker experiences isolation due to dependence on a beneficiary for physical, emotional, financial or other needs | ||
* Physical, psychological and behavioural characteristics of the will-maker | * Physical, psychological and behavioural characteristics of the will-maker | ||
* | * Circumstances related to the making of the will and/or the terms | ||
* Characteristics of | * Characteristics of influencers in the will-maker’s family or circle of acquaintance | ||
* Interviewer’s “gut feeling” | * Interviewer’s “gut feeling” | ||
{{LSLAP Manual Navbox|type=chapters15-22}} | {{LSLAP Manual Navbox|type=chapters15-22}} | ||
