What if I leave my Will to the last minute?

Intro Speaker:  

Hello, and welcome to Matters Beyond Wealth with your host, Leanne Kaufman, president and CEO of RBC Royal Trust. For most of us, talking about subjects like aging, late life, and estate planning isn’t easy. That’s why we’re going to help get the conversation started on this podcast while benefiting from the insights and expertise of some of the country’s top experts. We want to bring you information today that will help to protect you and your family in the future. Now, here’s your host, Leanne.

Leanne Kaufman:

We have all heard the horror stories of disputes and family disruption following someone’s death. Only the most salacious tales or those of well-known celebrities generally make it to the news, but everyone’s likely also got a story or two in their own circle of friends and family. Often these disputes involve someone contesting the Will, either claiming that the deceased was unduly influenced to change their Will or they lacked the necessary capacity. The trickiest of these situations sometimes arise when the Will is created or changed very close to the time of death. It then becomes, often, the role of the courts to strike the right balance between honoring the wishes of the individual who created the Will and safeguarding those individuals and their families against potential undue influence.

Hello, I’m Leanne Kaufman and welcome to RBC Wealth Management Canada’s Matters Beyond Wealth. With me today is Kirsten Jenkins, partner at Norton Rose Fulbright Canada LLP.  Her focus is in the area of advising individuals and families regarding estate planning, trusts, business succession and incapacity matters. Kirsten is an active member of the legal community and was a member of the Succession Law Reform Project, which provided recommendations to the government that led to the enactment of the Wills, Estates and Succession Act in British Columbia. She’s a regular lecturer for professional and industry-related groups, and has authored a number of articles and publications on estate planning, trusts and administration.

Kirsten, thanks for being here with me today to discuss some of these implications around near-death decisions and why this matters beyond wealth.

Kirsten Jenkins:

Thanks, Leanne. Thanks for having me.

Leanne Kaufman:

So, what are the circumstances that you see that lead to clients creating or changing their Wills, as we sometimes say, on their deathbed or very close to knowing that their passing is likely near?

Kirsten Jenkins:

There’s a couple of different things. First, obviously a significant change in health or a poor diagnosis will often focus people’s attention on their planning—laser focus. For some, they have no planning and what they’ve been putting off now needs to be done in short order. But there are many others who already have planning in place, but sometimes the sense of concrete finality really causes them to think long and hard of what they’ve already done and to think critically about does that work, is it going to go the way I want it to go? And so often I find myself with clients, they want to walk through exactly what’s going to happen when they pass, who gets what, what will that look like.

Often that will cause them to make changes or even sometimes to make gifts, for example, in advance of death. So that’s very common. I think the last thing I would say is facing death as they are. They really have a sense of who’s been important to them in their life. And that’s not just their family, but also those people who’ve held their hands, who’ve taken them to the hospital, who’s really been a super support for them at the end of their life, I often see people wanting to recognize that, and that’s often why people include gifts, for example, in their Will for those people.

Leanne Kaufman:

In your experience then, why do you think this so frequently leads to Will challenges? What areas of complexity or potential conflict do these situations end up creating?

Kirsten Jenkins:

There’s a couple of reasons for it, I’d say. First, sometimes the changes are really significant. When you see a significant departure from the prior plan to a new plan that can often lead to many disappointed beneficiaries after the fact saying, “Why did this happen? What were the circumstances around that significant change?” And probably more importantly is when people are sick, emotions with the testator, as well as their family are running high at the end of their life, and people can act rashly, they can act out of character, all those historical issues of who loved mom better, all those things often bubble to the fore. That often leads to miscommunication, mistrust around family members, what they’re doing, what happened, whether it did or did not happen. There’s a lot of mistrust that happens after the fact. Those are the two main reasons I see why people start to raise questions about what really happened.

In terms of the kinds of challenges that we see, there’s three main kinds of challenges:

The first, which is of course the most common, is an allegation that the person lacked the mental capacity to make the changes or to execute the Will in the first place. As you know, there’s a legal test that has to be satisfied in order for a Will to stand up, the testator has to have met that legal test.  Often people with serious health issues are not as cognitively aware as they would be for you and I at any given time, so the decline is often what causes people to raise the question.

The second allegation I see, and this is not as common, but it does exist, is the allegation that the person who signed the Will didn’t really know or understand what the contents of their Will were, they had the capacity, they just didn’t understand what they were doing. You can imagine with deathbed Wills, often these documents are being prepared or revised on short timelines. Often the medical situation, the testator may make it difficult to review those documents and fully appreciate the consequences and details of the Will. For example, was the testator able to read the Will and fully understand its terms? And if they’re not, what do we do to make sure that they understood? Was that Will read for them word for word so that they actually understood what was in that Will? Clients can often be aware in the moment when they are signing a Will, but then they later forget, that’s not uncommon. Again, that disconnect that’s communicated to family members is where that miscommunication sometimes happens.

Then the last and third is the allegation of undue influence. I hate to say it, but it is becoming a common occurrence. I see it in the realm of caregivers and family members who often are in financial need and are trying to influence the testator to give them a greater share of the estate. In my own practice, sadly I’ve seen that where caregivers or so-called friends come in at the last moment—and that’s often not so much on deathbed, but people who are elderly who don’t have a lot of family and don’t have a strong support network around them. People can often be easily influenced by the attention of people. These people are lonely and I often see that scenario arising. So that’s a huge source of concern. And you can imagine, I’m sure, you see this all the time with the wave of transition of money that is happening with people passing away and the next generation receiving money. The stakes are high and people often will do things to try and get a larger share of the pie.

Leanne Kaufman:

So it sounds like sometimes it’s just a lack of communication, just not recalibrating expectations with someone who knows what they’re doing. Or it could be, as you mentioned, actually not fully comprehending or understanding the implication of the changes. Or then those vulnerable clients who truly are being unduly influenced, or at least an attempted undue influence. So then what are some of the safeguards that you might recommend to clients? So assuming it’s not undue influence, people want to make these changes, but they’re concerned that there might be a Will challenge because of some of these other circumstances that you’ve talked about. What are some of the safeguards that you think could be put in place to potentially avoid a Will challenge, or if you can’t avoid the challenge itself, at least set up those that you’re leaving behind to be really well positioned to successfully defend it? And this could be regardless of when the Wills being created, obviously deathbed or otherwise.

Kirsten Jenkins:

For sure, great question. I think first, as much as possible, I would suggest retaining a lawyer to assist them with the preparation of a Will or changes to it. I know that’s self-serving, but there’s importance around that. Someone who specializes in estate planning can see those issues coming and knows the flags to look for. The other reason I say retaining a lawyer is because part of my job is to have a great paper file of what occurred, and that’s critical to family members in defending a Will. So, a big part of my job is not drafting the documents, it’s actually assessing capacity, making sure I document what transpired, making sure I’m managing that there actually is no undue influence occurring, and that’s really helpful. You can think of a scenario of a homemade Will, just to use that as an example, there’s often little or no written evidence of what actually occurred and that puts the executors and family members in a difficult position if issues arise in respect to the Will…and there’s really nothing, it’s a he said, she said scenario.

I think the second thing that also can be a very valuable thing, and it depends on the circumstances, but if you do feel like their capacity may be questionable or at least diminished, often having a medical opinion to go along with the legal opinion can be very helpful. It’s not definitive, but certainly helps to bolster the position that they did have the requisite mental capacity. Often if I’m not sure or I’m on the line, I’ll go and have a medical practitioner who’s seen the client, who knows the client to actually weigh in and provide an opinion.

Third, the circumstances surrounding the changes are also really important. Again, I know this sounds like housekeeping, but who’s in the room? When I meet with clients, I meet with them alone. It doesn’t matter if it’s in my office, it doesn’t matter if it’s in the hospital, everybody’s got to leave. I’ve got to spend some time being able to actually have a really frank conversation with the testator about what they really want. People are often offended, family members are often offended by that, and I often have to say to them, “No, this is a good thing, you don’t want to be here. Please stay out in the waiting room and that will be better for you in the long run.” The other thing I would say, and we don’t always have the luxury of time with deathbed Wills, but if we do, meeting with clients more than once is very helpful to have a pattern of having had a conversation, they’ve had time to reflect. I’ve had time to look at them and see them multiple times to really say, “Yes, I believe they actually had capacity, that all these things are all on the up and up.”

Then the last thing I would say, and it’s more to a situation where there might be the sense of undue influence, some family members might be saying, “Well, look, I’m concerned about Bobby over here who’s influencing Mom.” Because emotions are running so high, people think that they’ll remember what happened, and they often don’t. So I often tell clients if they’re really concerned about undue influence and if they have the longer time period is to actually make a journal, write things down, because that will help them so much if there is a real reason to challenge it after the fact, or defend it if the case may be. So having even their own notes can be very valuable.

Leanne Kaufman:

Well, and your first point really there about seeking competent legal counsel, not just legal counsel, but legal counsel who knows what they’re looking for. I know in BC, and I think now in Saskatchewan, the law is permitting digital Wills, meaning Wills that never have to be produced or created in hard copy or no wet signature, and then of course there’s all the online Will creation tools even in all the other provinces that still end up having to be printed out and signed. What about that kind of service, would you see a greater concern, I’m going to guess you would, when someone is using one of these platforms in one of those potentially risky or open to challenge situations?

Kirsten Jenkins:

For sure. I guess I’d say at the outset I think those tools are good, people need to have access to that. Not everybody can afford a lawyer or a notary, and I’m sensitive to that, and so those things should be available to people. You and I have both seen too many times where people die without any Will at all, and that creates its own problems. Having said that, those tools are ripe with problems, and you alluded to it. There is no one assessing mental capacity in that scenario. There’s no record of really what occurred. Safeguards around, for example, who’s in the room. Even if you and I are on video, how do I know there’s not somebody standing right beside me pointing a gun to my head? We don’t know that. We can’t test that. And that’s difficult.

It reminds me of why we have such a long history of the formalities of executing a Will, why do we do it the way we do it? And it’s because it helps these kind of situations. For example, one of the indications of capacity and authenticity is the signature of the testator. You’d say if it’s shaky or it departs from their signature, well, maybe that’s a reason to raise concerns and did they have the capacity? But you’re not going to get that from a digital Will at all. You have no sense of any of those issues, so that’s an issue. And, of course, authenticity is hand in hand with that. Did the person really sign the Will? Do you have proof that they really signed the Will? How do you know that’s not somebody authoring their Will on their behalf? So I definitely can see that there’s going to be litigation in the future about those issues. I haven’t seen any on true digital Wills yet, but it’s coming down the line, for sure.

Leanne Kaufman:

It’ll be an interesting area to watch specifically from this perspective of authentication and undue influence and so on, because it is very much in its infancy, but it will be something I’ll watch with great interest.

So if you were asked to create a Will for a client, knowing that there could be capacity concerns or that it’s a deathbed situation, what are some of the red flags that you would be looking for when you’re trying to assess that capacity or think about whether it’s one that’s at risk of being challenged?

Kirsten Jenkins:

I think first and foremost I want to understand where the client’s at. So, what is their health status, what medications are they on, are they cognitively diminished in any way? This all goes to the mental capacity test. So, talking to people, talking to practitioners who are helping them, even family members have a sense of it. Not to be guided by them entirely, but to get a lay of the land is very important. I think the biggest flag for me is how the family shows up in these situations. What’s the role they’re taking in this process? It’s not uncommon for family members to call me directly and give me instructions. That is a real red flag for me. Now, there may be practical realities to that, but that is a real red flag. Sometimes I get different family members giving me different instructions, so you can imagine how that goes. But I always worry of people who want to drive the process, those interfering with the process, wanting to control it, or exclude people from that process, those are real flags for me about I have to manage this situation really carefully and those people themselves need to be managed really carefully. And, again, that’s all just driven by emotion. I’d say another real red flag is I have to really spend time assessing whether they actually understand what they’re doing. Do they understand what a Will is? Do they understand what it says? And for most people, that’s a very easy assessment, but if you’re in a diminished capacity state, you really actually have to spend the time going through those hoops and making sure that they do truly understand what’s going on.

I guess the last big flag for me is when a client really wants to make a significant change, why are they making that change? They have to have a rational basis for it, and they have to be able to tell me why. If they can’t tell me why, if it’s not rational, I’m concerned. So, they have to be able to explain it in a way—and often there are good reasons—but they have to be able to explain it. So that’s a real flag for me.

Leanne Kaufman:

Well, you’ve given us a lot to think about in the context of generally preparing Wills and some of these family dynamics I think that might lead to challenges or some sort of concern raised by the family after the fact, but specifically in these near-death situations. But if you just had one piece of advice or one thing that you wanted listeners to take away from our conversation today, what would that be?

Kirsten Jenkins:

I think it would be ask yourself, what’s the legacy you want to leave your family? Don’t leave them with a mess. And doing planning in a non-crisis situation is the best for them. So do it early and be proactive.

Leanne Kaufman:

I think that’s great advice. Thank you so much, Kirsten, for joining me here today to talk about some of these complications and the implications of changing Wills, creating them, especially in near-death situations, and why all this matters beyond wealth.

Kirsten Jenkins:

Thanks so much for having me.

Leanne Kaufman:

You can find out more about Kirsten Jenkins at nortonrosefulbright.com. If you enjoyed this episode and you’d like to help support the podcast, please share it with others, post about it on social media, or leave a rating and review. Until next time, I’m Leanne Kaufman, thank you for joining us.

Outro speaker:

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