Ask Ed: When Estate Planning Clients Disinherit

Mary wants to cut out a niece from her will. Is this a simple matter?

According to Mary, it is a simple change. She can prepare a one page document herself and have her neighbours sign as witnesses.

Is she correct?

What would a lawyer do when reviewing Mary’s wishes?

Lawyers must follow certain procedures. Normally, I would want to know what was in Mary’s prior will. If I had not prepared Mary’s will in my office, I would request a copy of her will.

The Law Society also requires me to:

• obtain photo identification from Mary

• avoid any conflict of interest

• provide independent and objective advice

I would review Mary’s circumstances to give her estate planning advice. I need to know:

1. What has changed since she made the will in 2005?

2. Had she purchased any property?

3. Had the value of her investments increased or declined?

4. Had her relationships changed? Was she divorced, separated or with a common-law spouse?

5. Had she made promises or commitments to the niece?

6. Had Mary’s spouse made commitments to the niece?

7. If Mary had a joint bank account with the niece. Was she aware this would still go to the niece outside of the will?

8. Would Mary also change designations or accounts?

9. Was the niece disinherited for capricious or acceptable reasons?

Without reviewing Mary’s circumstances, I could not say if the niece would sue the estate.

Codicils are legal documents that amend wills.

Every codicil must be signed in the presence of two witnesses.

The signing formalities for codicils are identical to those required for wills. This means that both witnesses must be present to watch Mary sign the will.

If the codicil is not properly signed or witnessed, it is invalid.

Lawyers who prepared codicils can be sued by beneficiaries. The law makes lawyers legally liable for negligence.

There are lawyers in every price range. Your clients cannot afford to make a bad investment. Help them find a capable estate lawyer. Otherwise, they will always be revising their wills and risking making mistakes.