This column has been provided by James Steele, lawyer
Having a will is meant to provide you with comfort. If done right, a will makes sure your family gets their inheritance, and there are no costly legal battles about who gets what. Yet, all too often wills are challenged in court. These fights can cause a lot of emotional turmoil and family tensions, and sometimes eat up the estate in legal costs.
However, there are things you can do to help avoid your own Will being challenged.
A typical case?
I practise a lot in the area of estate litigation. Let’s take a hypothetical but common scenario.
“Tom” is 85 years old and lives in a small town in Saskatchewan. He is a widower and has a son and a daughter. His son lives in Nova Scotia and does not visit Tom much. Tom’s daughter, however, lives near Tom with her family.
In 2010, after his wife died, Tom made a new Will. It gave everything equally to his two children – a pretty standard Will. The children were aware of this 2010 Will.
In later years, Tom becomes more frail and dependent. Tom gives up his driver’s licence. He goes out of his home less and less. Tom relies on his daughter for medical needs, and errands. Tom feels grateful. The son doesn’t see much of this, as he is living out of province. All the while, the son calls Tom on holidays, and notices Tom is more and more forgetful, although Tom is still his cheerful self.
During this time, Tom make a new will. He uses a homemade will kit. He asks his daughter to buy a will kit for him, and Tom fills it out. A friend of the daughter acts as one witness, and the daughter is the other witness (this is bad idea, as shown below).
Tom leaves 70 per cent to his daughter, and 30 per cent to his son. He gives the daughter extra, because Tom is grateful to his daughter for the help, but still wants something to go to his son and the son’s family. Tom names the daughter as executor. That means her job is to gather up all the assets owned by Tom, pay the debts, and then distribute what's left under the terms of the will.
Tom never tells his son about the new will, not wishing to risk any turmoil in the family.
A challenge begins:
Tom passes away. The son learns of the new will. The son has suspicions and feels this unequal treatment couldn’t have been intended by his dad.
The daughter tries to explain, but the son cannot help having concerns about whether his dad was taken advantage of. After all, Tom was forgetful on the phone. Thus, maybe Tom lacked mental capacity when he made the new will? Or maybe pressure was put on Tom? After all, Tom was living alone, and maybe the daughter used her visits to pressure him?
The son decides to hire a lawyer to challenge the new will. The daughter hires a lawyer to defend the new will. Both sides go to court and eventually each spend tens of thousands of dollars in legal fees. Eventually they agree to a compromise, but it takes up years, emotion and a lot money.
What lessons does this teach us?
What can we learn from the above scenario?
1. First, having a lawyer properly draft your will, can be a good investment. A lawyer should know what questions to ask a will-maker and will keep good notes.
In terms of avoiding a challenge, the lawyer will meet with a will-maker alone, and make sure the will-maker is of a sound mind and is not acting under pressure. Then, if a challenge is later brought, the lawyer’s notes can be very helpful as evidence in clearing up any confusion.
Lawyers can also benefit you, as they are better able to put up estate-planning firewalls to ensure your wishes are followed to the letter.
2. Second, the notes of a lawyer are more independent evidence, than the evidence of a beneficiary. Here, right or wrong, any evidence of Tom’s daughter may unfortunately be seen as potentially conflicted. She has a personal interest in upholding the will. The other witness – the daughter’s friend – is also not totally independent, as she is a friend of the daughter.
3. A lawyer will also make sure the will is executed properly (e.g. the right wording is used to describe assets, and the proper signatures are applied). Here, for example, the daughter should not have acted as a witness. A person who receives a gift under a will, should not be a witness, as it can lead to that person’s gift being void.
4. Finally, when a will-maker has died without explaining a new will to a disappointed child, too often the child assumes the worst. A will-maker should tell their children about all new wills, and not leave any surprises to be discovered only after you have passed on.
Summary
There is a good chance that will challenges in Saskatchewan will only get more common in the coming years. There is a large transfer of wealth, from one generation to the next, which is occurring as we speak. Moreover, baby boomers are living longer and require added care, often delivered by one of their children.
Sometimes there is one family member stepping up and providing care. If the will-maker later changes their will and gives more property to the primary caregiver, the rest of the family can be hurt and surprised after the will-maker has died.
In my experience, many people wish to challenge a will are shocked or disappointed by what it says. However, situations of suspicious family members can be avoided. With the right planning and communication up front, you can better ensure that your wishes are smoothly followed when it counts the most.
Contacting a Lawyer on this Subject
James Steele’s preferred practise area is estate litigation, including will challenges, issues surrounding executors, joint account disputes, etc.
For more information on this subject, contact James Steele at 1-306-933-1338.
The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.
