Taking Instructions

A. Initial Client Contact

The initial client contact often will be in your office. Occasionally, due to disability, transportation, illness or urgency issues, the initial contact may be in the home or hospital room of your client. It is not unusual to be called into a hospital to meet a client who has a terminal illness and wishes to finalize his or her testamentary affairs with the spectre of imminent death hanging heavy in the air.

B. The Client Interview

As a result of misinformation or lay advice, clients often hold many misconceptions about how their estate should or must be divided. Your role at the initial stage is to make the client comfortable, obtain the necessary information, and determine the client’s needs.

The Law Society's Code of Professional Conduct for British Columbia requires you to establish your fees and all of the services you will or will not be providing. For example, it may be relevant to discuss other documents such as powers of attorney, living wills, representation agreements or possible inter vivos transfers of property. (Before recommending inter vivos transfers of property, consider potential income tax implications such as the attraction of immediate capital gains, and also consider whether there may be other family members who will be motivated to make a claim based on undue influence or other perceived unfairness, or the principles of resulting trust.)

Find out when the will is required. If the client is ill or travel is planned, the will must be prepared immediately. Even if the client is in good health, you should act expeditiously in case the client becomes incapable or unexpectedly dies.

When discussing your client’s needs, consider the client’s express wishes and the need for supporting documents such as a power of attorney, a representation agreement, a trust agreement, a marriage agreement, or a property co-ownership agreement.

Different laws may apply if your client is Aboriginal or holds property located outside of British Columbia. See for example sections 42 through 50 of the Indian Act, R.S.C. 1985, c. I-5, which may apply to “matters and causes” testamentary when the deceased is a registered Indian who was “ordinarily resident” on reserve or Crown land. This module does not address these issues in detail, but you should become familiar with both of these topics.

 

(i) Who may be present?

You, not your paralegal, should take the client’s instructions because the process inevitably requires that legal advice be given.

Sometimes a family member or a friend may be helping your client. Be cautious about including anyone else in the interview – there may be conflicts problems or issues of undue influence. 

It is entirely appropriate to meet with your client alone. If the will-maker insists on having others present, you may decline to continue if you feel it is inappropriate for anyone else to be present.

When others are present with the will-maker (e.g., spouses, children, life partners, or friends) and you intend to represent the will-maker only, you should advise the will-maker and the others that you represent only the will-maker. Minimally, you should advise the will-maker in private of the rights and obligations relating to solicitor/client confidentiality to satisfy yourself that the will-maker can make a fully informed waiver of that right. If the will-maker is waiving the right to confidentiality, confirm in the presence of all who are permitted to be present that everything said by the will-maker and all of your advice will be heard by the others. With that in mind, the will-maker may wish the others to leave the room.

If you are still concerned after giving this advice, you should decline to act or confirm your advice to the will-maker and others in writing. Particular consideration should be given to section 52 of WESA which, in certain circumstances, puts the onus on a person seeking to defend a will to demonstrate that no undue influence was exercised in respect of the will. 

 

(ii) Preparing mutual wills

You will often be asked to meet with the client’s spouse, who intends to make a mutual will. If you intend to prepare wills for both spouses, you must first inform both parties that there is no solicitor-client privilege between you and both parties, and that you are obliged to inform both parties of any information or instructions that you receive or give to either of them.

Representation of two spouses, especially when extended families or former spouses are involved, is in many regards no different than representation of any other two clients. See the Commentary (2) on joint retainers set out in Chapter 3.4-5 of the Law Society of BC's Code of Professional Conduct for guidance when representing two or more clients.

Whenever you represent two or more clients, your file should include at least a memorandum that details the nature of the representation and the explanation that you gave to the clients. In some cases, a written acknowledgement of the explanation should be obtained from the clients. It is not enough to simply make a brief note such as “conflicts discussed” in your file. Some practitioners shy away from drawing mutual wills because they can be complicated, especially where blended families are involved. Many clients do not appreciate the fact that mutual wills are a simple concept only while both spouses are alive. 

Note that s. 55 of WESA replaces s. 15 of the Wills Act , and provides that a valid will is no longer revoked by a subsequent marriage of the will-maker. The new revocation rules are set out in s. 55 of WESA. Depending on application of the transition provisions of WESA, section 15 of the Wills Act may no longer apply to automatically invalidate a will upon the subsequent marriage of the will-maker. In addition, the new spouse may have a claim, pursuant to s. 2 of the Wills Variation Act or Division 6 of Part 4 of WESA, to vary the will. This is a complex area and a full discussion is not possible within the context of this module, but research resources are listed in Further Reading below.

Note that a mutual will is revocable notwithstanding the covenant not to alter. However, the mutual wills may give rise to a constructive trust that cannot be revoked. The constructive trust arises from the agreement within the mutual wills not to alter or revoke the provision without the other’s consent.

Having taken instructions from spouses to create mutual wills, you must be vigilant to ensure that you do not breach your duty to one spouse by taking future instructions from the other spouse to change his or her will without the clear consent of the other. Such consent likely requires independent legal advice.

 

Further Reading
Recommended further reading to complete this module:

BC Probate and Estate Administration Practice Manual, 2nd ed., (looseleaf, The Continuing Legal Education Society of BC).
See the discussion of mutual wills in the context of probating an estate.

 

(iii) What information will you need?

(a) Using checklists

Checklists are imperative. Checklists are particularly important to focus the client on the information that must be provided and to ensure that no information is missed.

A very good checklist can be found in The Continuing Legal Education Society of BC’s publication, Wills and Estates Fundamentals for Legal Assistants, 2008. The Law Society also provides checklists for the Will-Maker Interview, Will Procedure and Will Drafting.

At a minimum, you will need information about:

  • the will-maker’s spouse, former spouse(s), common-law spouse(s) and companion(s);
  • divorce orders, family court orders, any other court orders that might impact on the estate;
  • marriage, separation or co-habitation agreements (these are relevant because they may include clauses binding the will-maker's estate);
  • the will-maker’s children, including estranged children, children from prior relationships and adopted children;
  • all other beneficiaries; and
  • the will-maker’s choice of executor(s), trustee(s) and if applicable, guardian(s).

Your client should provide the full legal names of their spouse, children, and beneficiaries. This will help you to properly identify the beneficiaries in the will and later it may assist the executor of the estate for giving notices under Part 25 of the new Supreme Court Probate Rules and Part 6 of WESA The ages of the beneficiaries are important because you may need to consider guardians or trustees for minors.

You also need to know about the financial dealings between the will-maker and his or her family members and beneficiaries, such as loans, gifts, or co-ownership agreements for property. Such information may lead to a reapportionment of interests in the estate, discussions about assets passing outside the estate, or possible wills’ variation applications that may arise if a family member is being left out. Your discussions around such issues should be noted in a detailed memorandum to the file and possibly confirmed in a reporting letter to the client.

You need to know if there are any dependants or beneficiaries with special needs or disabilities who may require financial assistance from the estate or for whom special gifts must be created to avoid disentitling them to government benefits. More is included on this topic below under the heading Gifts and Other Considerations for Disabled Beneficiaries in this module.

You should obtain details of other relatives who might be entitled to notice of an application for a grant under Rule 25-2.

Working out a family tree can be helpful to understand who may require notice upon the death of the testator.

 

(b) Reviewing the client's assets

Using your checklist as a guide, review all assets with your client. This serves two purposes:

  • It helps both you and your client to understand what may be available to the estate for distribution upon his or her death; and
  • It helps you ascertain whether the client has sufficient knowledge of their estate to satisfy the test for testamentary capacity (discussed in detail below).

You should be aware of all of the property and financial assets including real estate, investments, RRSPs and RRIFs, business assets, partnerships, shareholders’ agreements, buy-sell agreements, impending inheritances and insurance policies. You may realize after discovering more about the extent of a client’s estate that he or she requires some in-depth tax or other business planning, or that the will requires specific clauses to facilitate the transition of business interests. See "Tax Consequences" under the Probate and Estate Administration Practice Refresher Course for more information. 

This is a good time to discuss whether an asset falls within or without the estate. Find out if the client has named beneficiaries for some assets (e.g., RRSPs and life insurance policies) so you can engage in a meaningful discussion about distribution. Clients often change the beneficiary designation on a life insurance policy at this point in order to distribute their estate fairly.

While ascertaining your client’s assets, make particular note of assets that are located outside of BC. Your client may require additional wills for assets located in other jurisdictions and you may need to coordinate the will that you prepare with the ones prepared in other jurisdictions. You must also ensure that the new will does not revoke earlier ones.

 

(c) Testamentary capacity

Sometimes it is not apparent whether clients have the necessary capacity to make a will. Most experienced solicitors will be attuned to some of the red flags that give rise to these concerns:

  • When it is necessary to have a spouse, family member or friend make the appointment and attend the initial and subsequent meeting;
  • When the client does not have a clear understanding of why they are meeting with you; or
  • When the client exhibits obvious signs of confusion.

Frequently cited, the case of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567 provides a general statement of the test for capacity to make a will:

In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who are the object of his bounty, the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed and the disposition of his property in its simple forms.

In a Continuing Legal Education Society of BC course in February 2007, Edward F. Macaulay wrote in his paper, Aging, Death, Divorce – Assessing Competence of Elderly Parties, that the test for testamentary capacity includes the following:

  • The will-maker must know what a will is – that it disposes of his or her property.
  • The will-maker must know the assets that he or she disposes of.
  • The will-maker must have in mind his or her family and others who would be the natural objects of his or her bounty.
  • The will-maker must be free of delirium, which would affect his or her judgment in the matter.

You should ask the will-maker specific questions that tests his or her capacity. Such questions might include the following:

  • Can you tell me about how much money you have in the bank?
  • Where is your bank?
  • Do you own any real estate?
  • How many children do you have?

If you feel there are competency issues or that someone may challenge the will on this ground, you may suggest obtaining a medical opinion to support capacity. A qualified physician should be asked to prepare a report on the client’s capacity to make a will. If obtained, it should be kept on file for future reference. Ideally, this report will bear the same date as the date of the will.

The report should address the following issues:

  1. Any medical conditions or medications that could possibly affect your client’s ability to make sound decisions.
  2. The doctor’s assessment of your client’s ability to act competently with respect to his or her financial affairs.
  3. The doctor’s assessment of your client’s ability to provide instructions to you.
  4. The possibility that your client suffers from any disorder, delusion, or other medical condition that could influence his or her decision-making abilities, particularly those dealing with assets (e.g., their nature and extent), as well as decisions relating to their disposition.

(d) Ascertaining the client's wishes

Executorship

The client should be prepared to select an executor and an alternate in the event that his or her first choice dies or becomes unable or unwilling to act. Your skill and knowledge in explaining the duties and responsibilities of the executor will be very helpful to the client. You should be prepared to discuss the advantages and disadvantages of an individual executor vs. co-executors and institutional executors, such as trust or investment companies.

For example, an individual executor may be preferable to multiple executors for logistical reasons. It may be difficult to get joint executors together for dealing with estate matters or they may not agree on matters as they arise, causing delay in distributing the estate. An individual can be a trusted family member or friend who will use care and attention when dealing with the estate. Many will-makers are relieved to know that the executor’s fees will be paid to someone that they know and trust.

On the other hand, institutional executors may be appropriate in some circumstances, such as where:

  • the nature and complexity of the estate assets requires the skill and expertise of a trust company;
  • the duties of an administrator are likely to be too onerous for a lay individual;
  • assets will be held over many years and require continuity;
  • the will-maker wants the security of management with protection against default;
  • conflict between family members is anticipated; and
  • family members or friends cannot be relied upon to carry out their executorship duties.

 

Gifts

Lawyers are frequently asked to “advise” their clients on what is an appropriate gift or what would be an appropriate way to divide the estate.

It is appropriate, and in many cases necessary, for you to discuss the following:

  • The intestacy provisions of WESA. Part 3 of WESA specifies how the assets are distributed on an intestacy among spouses, issue, and in some cases other immediate family members. A spouse’s entitlement will include the first $300,000 and half of the remainder if the deceased and the spouse had descendants in common. That amount will be reduced to $150,000 and half the remainder if the deceased’s descendants are not common descendants of the deceased and the spouse.
  • The provisions of Division 6 of Part 4 of WESA, which provide that the court may interfere in the disposition of an estate when the will-maker has failed to make adequate provision for the proper maintenance and support of a spouse or child.
  • Presumptions of advancements and resulting trusts. You may need to discuss with the will-maker whether there have been actions in the past that arguably might amount to the gifting of an asset to a spouse, child, or other beneficiary that effectively removes the asset from the estate of the will-maker. For example, a will-maker may have provided money to one child for a down payment on real estate, or may have opened a joint banking account with only one child. Other siblings may believe this should be considered a part of the recipient's inheritance if equal amounts have not been given to all children. If the money was a loan, the will-maker may want to forgive it in the will, or if it was a gift, the will-maker may want to specifically exclude it from the calculation of the recipient's share of the estate. Refer to the decisions of Madsen Estate v. Saylor 2007 SCC 18 (Can LII) and Pecore v. Pecore, 2007 SCC 17 that discuss the circumstances of joint bank accounts between a parent and one child. The presumption of advancement applies to minor children only. A resulting trust is created when adult children are involved. The surviving child must rebut the trust in order to take the proceeds in the joint account through the right of survivorship.
  • Other issues regarding inter vivos loans or gifts. Gifting portions of the estate during a will-maker’s lifetime can in some cases avoid probate fees and remove the asset from the will-maker’s estate. However, in some instances, such as the gifting of real property, the probate fees saved can pale in comparison to immediate income tax implications. As well, be careful to explain to the client that gifting removes control of the asset from the will-maker and may cause family conflict during the client’s lifetime. All inter vivos gifts or loans of any significance should be carefully considered in the broader context of income tax, family dynamics, and the state of the law at the time regarding presumptions of advancement and resulting trusts.

Although you should advise the client of the possible legal ramifications of their decisions, your discussion should focus on what the client wants. Remember that a solicitor’s role is to give advice and take instructions from your client. If a client makes a decision that is contrary to your best advice, document your advice either in your file or, better yet, in a letter to the client.

 

Further Reading
Recommended further reading to complete this module:

BC Probate and Estate Administration Practice Manual, 2nd ed., (looseleaf, The Continuing Legal Education Society of BC).
See the chart summarizing the intestate succession provisions in the Estate Administration Act at §1.55

Undue influence Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (BC Law Institute, 2011)

 

The scope of advice

The scope of advice is limited only by your own knowledge and experience. It is appropriate to discuss all relevant methods to accomplish the will-maker’s goals including creating trusts, making legacies and discussing tax treatment of assets before and upon death. If a client has a large estate and you are not comfortable with your knowledge of estate and tax planning, consider referring the client to someone with specialized knowledge in this area.

You should always keep good notes of your instructions for drafting purposes, for future interpretation of the will, if necessary, or for possible claims against you. A simple note to file in the order of “assets discussed” or “legislative provisions discussed” is not enough for any purpose.

Many clients do not appreciate the distinction between estate and non-estate assets. It is important to have a full discussion of the various strategies that may be used to avoid probate (and the corresponding fees) with clients, particularly when you are dealing with spouses. Sometimes avoiding probate makes good sense, while other times, it does not.

For example, you should explain the effect of land held as joint tenants (and the right of survivorship) versus land held as tenants in common. Your advice will depend greatly upon the facts. A married couple with children from prior relationships may not want to be registered as joint tenants, as this could result in the children of the person who dies first being “disinherited”. The same logic applies to bank accounts. You should ascertain your client’s wishes and make notes of your discussion prior to preparing the will.

Similarly, you should discuss the tax advantage of naming a spouse as the beneficiary of an RRSP or RRIF. This tax-free transfer is not available if the beneficiary is not a spouse of the deceased. Death benefits associated with pension plans can have the same tax advantage.

A client with a blended family should cause you to think about potential claims under Division 6 of Part 4 of WESA, particularly if the client wants to leave a significantly greater benefit to the new spouse than to the children of the prior relationship. Ensure that the will is fairly drawn, and perhaps suggest that the client designate the new spouse as a beneficiary under a life insurance policy – thereby causing that asset to fall outside of the scope of the will.

Always remember to ask your client about ongoing financial obligations. If, under a separation agreement, your client has agreed to maintain a life insurance policy to cover child support benefits, your client may not be free to change the beneficiary of that policy and may need to purchase another life insurance policy. Many clients do not remember these important details and may give you incorrect information. It is important for you to obtain copies of any separation agreements, court orders, and other documents that may be relevant to your client’s estate so that you can provide thorough advice.

 

Ancillary documents

Clients may need other documents from you such as a power of attorney, a representation agreement, a living will, or an inter vivos transfer of property. An example of a precedent Power of Attorney is found at Appendix A. This document authorizes the person appointed as attorney to make legal and financial decisions for the grantor. It is important for the grantor to understand that the Power of Attorney is effective immediately, may be used even if the grantor is competent, and terminates upon the death of the grantor. A Power of Attorney may be general in nature or be limited to a specific issue, such as allowing the attorney to deal with all matters relating to the sale of a house.

Many practitioners also make use of trusts to achieve their clients’ estate planning objectives. These trusts can be inter vivos or testamentary in nature. A thorough discussion of trusts is not within the scope of this Module, but information can be found in the Further Reading section below.

 

Further Reading
Recommended further reading to complete this module:

Wills, Trusts and Estate Planning: A Core Practice Area for the General Solicitor (General Practice Overview – 2007, The Continuing Legal Education Society of BC).
This paper provides a concise summary of key points relating to inter vivos and testamentary trusts at p. 2.1.11 to 2.1.13.

 

Fees

To avoid misunderstandings and to comply with the Code of Professional Conduct, it is appropriate to settle on your fee for services at your initial meeting. Wills are often drafted for a fixed fee, often below what you might charge on an hourly rate. That, however, is a matter that is up to each lawyer. Wills are sometimes considered to be a “loss leader” to introduce clients to the lawyer and are done as a community service.

C. Post Interview Searches

(i) Land Title Office

If real property is involved, search land titles in the appropriate registry to inform yourself and your client of the following:

  • The owner’s name as it appears on title. Sometimes title is registered in a name that is a variation of the will-maker’s legal name. The will-maker’s legal name should be used in the will. If the client has used a different name when registering documents in the Land Title Office, this will have to be handled at the time of probate, if it is not dealt with now. Make notes of the name variations, as this will facilitate a wills search.
  • How the property is registered (i.e., in joint tenancy or tenancy in common). If property is held in joint tenancy it will automatically pass outside the estate to the surviving owner.
  • Charges against the property. If a mortgage is registered against the property, find out if the mortgage is life insured and if not, make sure the will-maker understands that the value of the beneficiary’s gift will be reduced by the outstanding principal balance on the mortgage at the time of death.

 

(ii) Corporate Registry

In some cases it is practical to conduct searches of the provincial and federal corporate registries to determine:

  • the correct names of company(s) or charitable societies with which the will-maker is involved;
  • whether the company(s) or charitable societies are in good standing;
  • any discrepancies in the information provided; and
  • the existence of any shareholder agreements that might affect the rights of the will-maker to make a testamentary gift of shares.

 

(iii) Personal Property and Security Act Registry

Be aware of issues involving Aboriginal clients or matters involving Aboriginal interests. Practice points on Aboriginal law issues are provided on The Continuing Legal Society of BC’s website.

It may also be practical to search the PPSA registry to determine if there are any security arrangements affecting estate assets such as vehicles, boats, or other personal property.

 

(iv) Other registries

Other registries to search may include the shipping registry for boat registration, Mobile Home registry and the Indian Land Registry. Note that if you are dealing with lands in the Indian Land Registry, the system is very different than the land titles system and some interests are not transferable by way of an estate in the usual course.

 

Further Reading
Recommended further reading to complete this module:

Wills for First Nations Persons, in Aboriginal Practice Points (2007, The Continuing Legal Education Society of BC).