LSLAP File Administration Policy for Wills and Estate Planning (16A:XI)
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
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, student should only prepare a will for persons meeting our income criteria and whose estates are:
- Small (under $25,000); and
- Consist entirely of personal property, no real property (the future as well as present situation must be considered), with all of the estate located in British Columbia.
In addition to simple wills for individuals, LSLAP is only able to prepare “mirror wills” for clients, not “mutual wills”. A mirror will is designed for couples with similar wishes. The wills of the couple “mirror” each other: each leaves the same gifts to the other and each names the other as Executor.
By contrast, a mutual will includes a statement that the will-maker agrees not to change or revoke his or her will without the consent of another party (usually the spouse). This agreement will potentially bind the will-maker even if the other party predeceases the will-maker. Thus, a mutual will has a contractual component, in theory creating a constructive trust. However, a will-maker can always change his or her last will and testament. If a will-maker changes his last will and testament after the other party has died, the will -maker may create a right of action for beneficiaries of the preceding mutual will (which created the constructive trust) for breach of the trust.
Note that signing mutual wills are not a widespread practice. If a client is seeking LSLAP’s assistance in preparing a mutual will, the client must be directed to a qualified practitioner. It can be suggested that the client discuss with a qualified practitioner the possibility of creating an inter vivos trust instead of preparing a mutual will. Note that if you are assisting two clients to make mirror wills (or any time you are jointly representing clients), you should provide both clients with a joint representation agreement. This agreement must contain the information required by the Law Society of British Columbia.
LSLAP’s policy is that anyone who can afford a lawyer should be referred to one. A practitioner’s fee might vary from $300 to $500 for a relatively simple will. However, this material has been prepared for appropriate cases where the client meets LSLAP’s income criteria.
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 his or her wishes and that he or she understands 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.
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: 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. 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 his or her 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:
- Speak directly with the will-maker, never an intermediary.
- Interview the will-maker alone, not in the presence of the beneficiaries or spouses, except where taking joint instructions from spouses for mirror wills.
- 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 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.
- Have the will-maker read the Will Instructions Questionnaire over, section by section, or read it aloud to him or her.
- 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
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
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 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 the will-maker’s mind
Examples of this type of questions include:
- How/why did you decide to divide your estate this way?
- Why did you choose [proposed executor] as the executor of your will?
- What was important to you in making these decisions?
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 the will-maker is in a relationship of dependency, domination or special confidence or trust
Examples of questions to ask include:
- Do you live alone? With family? A caregiver? A friend?
- Has anything changed in your living arrangements recently?
- Are you able to go wherever and whenever you wish?
- Does anyone help you more than others?
- Who arranged/suggested this meeting?
- Does anyone help you make decisions? Who does your banking?
- Has anyone asked you for money? A gift?
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. Sample questions to consider include:
- 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 ever failed to help you take care of yourself when you needed help?
- Are there people you like to see? Have you seen these people or done things recently with them?
- Has anyone ever threatened to take you out of your home and put you in a care facility?
5. Obtain relevant information from third parties when possible and if the will-maker consents
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. 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.
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 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:
- Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner)
- 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
- Circumstances related to the making of the will and/or the terms
- Characteristics of influencers in the will-maker’s family or circle of acquaintance
- Interviewer’s “gut feeling”
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