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Death is not a pleasant topic for most people to discuss. Oftentimes clients will tell me that they’ve been meaning to prepare a Will for months, or even years, before they finally get around to it. It’s easy to understand why some of us delay making arrangements for the inevitable, especially when they are still in good health. But sometimes the inevitable comes sooner than we expect. These situations occur more frequently than I’d like to admit, but they could have been avoided by advance planning.

There are two problematic situations that can arise with delays in Estate Planning. In one scenario, a person dies unexpectedly before they are able to put a Will into place. In that case, there is an intestate succession and their estate in Ontario will simply be distributed according to the provisions of the Succession Law Reform Act. This means that any specific gifts or instructions a person may have intended to give, even if they made those intentions known, may be impossible. While this is an unfortunate situation, it has the benefit of being straightforward: the Act provides clear directions on how the deceased person’s property will be distributed. More complicated is the second situation where a person is still living but their mental capacity has become questionable.

Preparing your Will requires a high standard of capacity. You must understand the nature and extent of your assets, the legal effect of a Will, your obligations to your dependants, and be able to give instructions. With age and illness, particularly where degenerative conditions have set in, it can be difficult for a lawyer to determine with confidence whether a client is capable.

In these circumstances where an aging relative such as a parent has difficulty managing their own affairs it’s only natural for a family member to want to step in and assist. While that is perfectly understandable, it can also raise red flags for a drafting solicitor. A family member can get in touch and arrange an appointment with a lawyer, but the actual instructions have to come from the client directly. At this point a competent lawyer will need to ask some questions about the client’s health, to determine if they can describe their property, and express their wishes unprompted. It is especially problematic if a family member is present for a meeting: even a well intentioned prompt or reminder can raise questions of undue influence. If we proceed to write a Will in these circumstances, there is a real possibility of it being challenged.

In circumstances such as these, even a very simple Will can benefit from a good drafting solicitor. Firstly, before we’ve even had a meeting with a client we’ll want to make arrangements to ensure that we can speak with them directly to avoid the prospect of undue influence from a friend or family member. Secondly, during the meeting itself, we will want to ask appropriate screening questions to make a legal determination about the client’s capacity. If necessary we might arrange for a capacity assessment to be arranged by an appropriate medical professional. Thirdly, in the event that a Will is later questioned after a client’s death, a drafting lawyer’s notes can be valuable to providing evidence that the deceased person had the requisite capacity, as Richard Worsfold’s blog post from last year makes clear.

Your drafting lawyer can provide a safeguard to ensure a Will is prepared properly in uncertain circumstances, but ultimately there is only so much we can do if you delay things too long. The best use we can be is to help you make your plans well in advance so they can be as ironclad as possible. It is never too early to make your plans, but unfortunately, sometimes it can be too late.


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