As a lawyer, you have likely been trained to maintain a laser focus on your client’s interests and how to express and defend them. Being a fierce advocate is usually a good thing.
But when preparing a will for a client, it can be a useful exercise, once you have a good first draft, to intentionally play devil’s advocate.
At the Law Society of Upper Canada Solo and Small Firm Practice Conference in June 2014, estates lawyer Lisa Barazzutti suggested that when reviewing a newly-drafted will, it’s useful to read the will from the perspective of the beneficiaries. “Ask yourself,” says Barazzutti, “if I were a beneficiary, would I challenge this, and how?”
Putting yourself in the shoes of your client’s beneficiaries (or others who expect to benefit – but won’t) is a good way to remind yourself that a testator’s family may have expectations – valid or otherwise – about how assets will be distributed. To the extent that you can anticipate those expectations, you can identify potential areas of disappointment. The provisions in which the client’s instructions diverge from beneficiary expectations are the “stress points” where the will is vulnerable to challenge. Once you have identified those stress points, you can take steps to reinforce them.
For example, where a testator’s adult children are expecting to share equally in the ownership and management of an income property – and the testator would prefer to leave that asset to just one of the children − the will can include an explanation of the testator’s reasons: for example, that she thought it would be impractical for the children to make the necessary business decisions jointly. This explanation might limit the arguments that the “disappointed” beneficiaries can make in support of a claim for equal shares of the asset.
Provisions that explain the testator’s reasons for will decisions can also help counter challenges based on lack of testamentary capacity, because they can serve as evidence that the testator applied his or her reasoning to the implications of the particular bequests and devises. The chances of a successful capacity challenge can be further minimized by making notes in the file about discussions with the testator about his or her reasons. The lawyer can also describe, in file notes, his or her impressions of the testator’s capacity; as well as any inquiries made to ensure that the testator was not subject to undue influence.
Often, the parties most likely to challenge a will are not beneficiaries at all, but rather, non-beneficiaries: those individuals who expect to receive an inheritance, but who will not. Would-be beneficiaries who were dependent on the testator while he or she was alive will generally be able to rely on the Ontario Succession Law Reform Act (or comparable legislation in your jurisdiction) for a remedy. The trickier question is whether other, non-dependent parties may attempt to challenge the will based on the content of pre-existing wills, verbal promises, business contracts, trust doctrine, or other analyses.
To anticipate these arguments, the lawyer will need a detailed understanding of the client’s past and present relationships, marriage and/or business history, and living arrangements. Using a will interview checklist can help a lawyer remember to ask particular questions and to make notes in the file.
After reviewing those notes, read the draft will, considering the provisions from the perspective of former spouses, business partners, caregivers, and housemates. If anyone were to challenge the will, who would it be, and what would he or she argue? Once you’ve identified potential stress points, consider clarifying provisions to limit challenge arguments. Being devil’s advocate can mean being your client’s best advocate too.