"Simple Will" Is It Simple?
A Will has far reaching consequences. It may be a simple will from your perspective, however, remember this document which expresses your wishes after you have passed away cannot be altered. It speaks for you from death. It is a personal document and if drafted within the confines of public policy and WESA of BC it reflects the wishes of the Will Maker and it is the last word as to how the state of the Will Maker is to be disposed.
A well drafted will should not give rise to any uncertainty as it could take years and thousands of dollars in legal fee to resolve it. Pain endured by the loved ones or the potential beneficiaries during the process of correcting the error made by the will maker or more so by the will drafter is difficult to quantify.
It is therefore very essential for the will maker to give very clear instructions to the Notary Public as to how the estate is to be disposed. The Notary must scrutinise and examine the instructions to ensure that they are practical and are beneficial to the estate of the Will Maker. It is the duty of the Notary to educate the client and explain the law and prevailing public policy. Sometimes the Will Maker’s instructions are flawed and are contrary to the law or are unreasonable or may end up in litigation. As a Will drafter it is important for the Notary to provide proper and objective advice.
Even though it is important to reduce Will Makers wishes to the paper while drafting a will, it is a sacred duty of a Notary to make clients aware of what they should not do and if they still insist, they must accept and approve of the . As a Will Drafter a Notary Public may have to refer to notes of such interaction as when called to testify in a court of law.
A Will Drafter owes a duty to the beneficiaries as also to the Will Maker. A Notary will do well to discharge his duty by making proper enquiries of the Will Maker. Will Instructions should be taken in a deliberate manner and adequate time must be set aside for the same. Instruction of the client must be understood precisely, and appropriate advice must be given. These instructions are then converted to appropriate and valid testamentary provisions which express Will Maker’s wishes. Effect of all documents which may not be part of the will and deal with assets which pass outside of the estate in accordance with legal principles must be considered as they have a bearing on the testamentary provisions. The Will Maker must clearly demonstrate capacity to give instructions independently and display intelligence in disposition of the property/estate. It is the duty of the Will Drafter to make detailed notes and make acute observation with respect to the testamentary capacity of the Will Maker. This is done by making personal enquiry and making sure that instructions are given freely, and effect of the Will is understood. This responsibility is particularly onerous when the Will Maker is weak, ill and vulnerable and is revoking an existing will. In such cases is prudent to discover the nature of previous will to ascertain the reasons for any variations and contemplated changes.
Conclusion: Drafting a will which meets the aspirations of the Will Maker is very satisfying. However, a professional must remain vigilant and give due consideration to the legal or testamentary capacity of the Will maker. Any let up of guard at any moment in this area of legal activity can lead to many potential problems. The clients must be made aware of potential problems which may arise if their instructions are not in conformity with public policy and law. Do you still want to call it a simple Will?