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Difference between revisions of "LSLAP File Administration Policy for Wills and Estate (16:XIV)"

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{{REVIEWED LSLAP | date= August 4, 2020}}
{{REVIEWED LSLAP | date= August 10, 2021}}
{{LSLAP Manual TOC|expanded = wills}}
{{LSLAP Manual TOC|expanded = wills}}


This section is specific to LSLAP clinicians. It sets out internal LSLAP practices and policies regarding Wills & Estates.
This section is specific to LSLAP clinicians. It sets out internal LSLAP practices and policies regarding Wills & Estates.
== A. LSLAP File Administration Policy – Wills and Estates ==
 
== A. LSLAP File Administration Policy – Wills and Estate Planning ==


'''The only wills and estates issues LSLAP can responsibly provide assistance to the public is the drafting of certain types of simple wills. Students should refer clients to qualified wills and estates lawyers for all other issues'''. In addition, the student should only prepare a will for persons meeting our income criteria and whose estates are:
'''The only wills and estates issues LSLAP can responsibly provide assistance to the public is the drafting of certain types of simple wills. Students should refer clients to qualified wills and estates lawyers for all other issues'''. In addition, the student should only prepare a will for persons meeting our income criteria and whose estates are:
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Because the law on wills is strictly applied, precedents should be used to provide certainty. Any lack of clarity may defeat the intention of the will-maker, who will not, of course, be available to clarify contentious points once they have passed away.  Also, students should not take instructions from a person on behalf of someone else; they can prepare a will only for the client. The final will must then be reviewed with the client to ensure that it reflects their wishes and that they understand what the document means (see '''Section III.D: Executing the Will and Section III.E: Attesting the Will''').
Because the law on wills is strictly applied, precedents should be used to provide certainty. Any lack of clarity may defeat the intention of the will-maker, who will not, of course, be available to clarify contentious points once they have passed away.  Also, students should not take instructions from a person on behalf of someone else; they can prepare a will only for the client. The final will must then be reviewed with the client to ensure that it reflects their wishes and that they understand what the document means (see '''Section III.D: Executing the Will and Section III.E: Attesting the Will''').


Important changes to wills and estates law due to WESA have been highlighted in this chapter. However, students should refer clients to private lawyers if they are unsure how certain ''WESA'' provisions should be interpreted.
Important changes to wills and estates law due to ''WESA'' have been highlighted in this chapter. However, students should refer clients to private lawyers if they are unsure how certain ''WESA'' provisions should be interpreted.


'''Finally, LSLAP will not draft a will that disinherits potential beneficiaries'''. In other words, LSLAP is unable to help with clients wishing to eliminate spouses and children.  Clients wishing to disinherit potential beneficiaries should be referred to a private lawyer.
'''Finally, LSLAP will not draft a will that disinherits potential beneficiaries'''. In other words, LSLAP is unable to help with clients wishing to eliminate spouses and children.  Clients wishing to disinherit potential beneficiaries should be referred to a private lawyer.


'''NOTE: Before drafting a will for a First Nations person, please consult with the supervising lawyers. The client will most likely have to be referred to an outside lawyer. There are many complexities with First Nations wills, and LSLAP will likely not be able to assist'''.
:'''NOTE: Before drafting a will for a First Nations person, please consult with the supervising lawyers. The client will most likely have to be referred to an outside lawyer. There are many complexities with First Nations wills, and LSLAP will likely not be able to assist'''.
 
:'''NOTE: LSLAP’s Supervising Lawyer must be consulted on every will and must review the final product before it is sent to the client to be executed'''.
 
== B. LSLAP File Administration Policy - Probate and Taxation ==


'''NOTE: LSLAP’s Supervising Lawyer must be consulted on every will and must review the final product before it is sent to the client to be executed'''.
LSLAP does not advise clients on probate issues. Such clients should be referred to a private lawyer. The potential liability in administering estates is too great to permit greater student involvement; the
client should always be referred to a lawyer.


== B. Taking Instructions During the Initial Interview ==
Estate taxation is complicated. Clients should be referred to lawyers who specialize in these matters or the CRA, which has agents who specialize in estate taxation.
 
== C. Taking Instructions During the Initial Interview ==


The purpose of the initial interview is for the LSLAP student to complete the Will Instructions Questionnaire ('''Appendix A''') with the client in order to later actually draft the will. '''Students should never draft a will for a client during the initial interview. All wills must be approved by the supervising lawyer before they can be mailed or delivered to clients'''. At the end of the interview, the student should have a clear and full understanding of the client’s personal circumstances, assets, and desired distribution of their estate. The student should also have sufficient information to later assess the client’s testamentary capacity with the supervising lawyer. '''If there is any doubt as to a person’s capacity, consult LSLAP’s Supervising Lawyer'''.
The purpose of the initial interview is for the LSLAP student to complete the Will Instructions Questionnaire ('''Appendix A''') with the client in order to later actually draft the will. '''Students should never draft a will for a client during the initial interview. All wills must be approved by the supervising lawyer before they can be mailed or delivered to clients'''. At the end of the interview, the student should have a clear and full understanding of the client’s personal circumstances, assets, and desired distribution of their estate. The student should also have sufficient information to later assess the client’s testamentary capacity with the supervising lawyer. '''If there is any doubt as to a person’s capacity, consult LSLAP’s Supervising Lawyer'''.


'''The student should keep the following things in mind during the initial interview:'''
'''The student should keep the following things in mind during the initial interview:'''
1. Speak directly with the will-maker, never an intermediary.
# Speak directly with the will-maker, never an intermediary.
2. Interview the will-maker alone, not in the presence of the beneficiaries or spouses, except where taking joint instructions from spouses for mirror wills.
# Interview the will-maker alone, not in the presence of the beneficiaries or spouses, except where taking joint instructions from spouses for mirror wills.
3. Inquire into the nature and extent of the will-maker’s property. Ask about any prior wills (to ensure that all property and prior wills are satisfactorily dealt with, and to ensure that the will-maker knows of all the property being disposed of). Ask the will-maker about the existence of property that may not form part of the estate (e.g. real estate in joint tenancy, joint bank accounts with survivorship rights, insurance policies and pension plans with named beneficiaries, Tax-Free Savings Accounts (TFSAs), Registered Retirement Savings Plans (RRSPs), and Registered Retirement Income Funds (RRIFs)). Ensure that the will-maker understands that such properties, if there are valid beneficiary designations in place, do not form part of the estate and their dispositions are independent of the will and its effects.
# Inquire into the nature and extent of the will-maker’s property. Ask about any prior wills (to ensure that all property and prior wills are satisfactorily dealt with, and to ensure that the will-maker knows of all the property being disposed of). Ask the will-maker about the existence of property that may not form part of the estate (e.g. real estate in joint tenancy, joint bank accounts with survivorship rights, insurance policies and pension plans with named beneficiaries, Tax-Free Savings Accounts (TFSAs), Registered Retirement Savings Plans (RRSPs), and Registered Retirement Income Funds (RRIFs)). Ensure that the will-maker understands that such properties, if there are valid beneficiary designations in place, do not form part of the estate and their dispositions are independent of the will and its effects.
4. Have the will-maker read the Will Instructions Questionnaire over, section by section, or read it aloud to them.
# Have the will-maker read the Will Instructions Questionnaire over, section by section, or read it aloud to them.


*'''NOTE''': The LSLAP office has a precedent file, which may be consulted for the structure of various clauses. Clinicians may also see the Legal Support Staff Desk Reference, the Continuing Legal Education wills precedent book, or any book on will precedents.
:'''NOTE''': The LSLAP office has a precedent file, which may be consulted for the structure of various clauses. Clinicians may also see the Legal Support Staff Desk Reference, the Continuing Legal Education wills precedent book, or any book on will precedents.


== C. Undue Influence and Suspicious Circumstances ==
== D. Undue Influence and Suspicious Circumstances ==


In order to ensure there is no undue influence, clinicians should follow the British Columbia Law Institute guidelines below when conducting an interview with a client looking for assistance on making 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 points listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf
In order to ensure there is no undue influence, clinicians should follow the British Columbia Law Institute guidelines below when conducting an interview with a client looking for assistance on making 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 points listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf
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'''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'''
'''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'''
'''9. If suspicion remains high after reasonable investigation, decline retainer to prepare the will.'''
'''9. If suspicion remains high after reasonable investigation, decline retainer to prepare the will.'''


== D. Red Flags for Undue Influence ==
== E. Red Flags for Undue Influence ==


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
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
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