There are countless reasons to make or update your will,1 and the process can look very different depending on the lawyer you hire. You must ensure that your lawyer is fluent in estate planning and is also able to spot and protect against areas of potential litigation down the road. But what, exactly, does the process look like?
First, you will need to make a few significant decisions. Before you take any formal steps, consider your choices for estate trustee(s) and guardian(s) of your child or children, and the beneficiaries of your estate.
Next, you will need a lawyer. You may have seen advertisements for "will kits" or online will drafting services. These services do not consider your personal situation or plan for various circumstances, nor do they consider the best way to manage your assets. Since you likely do not have expertise in estates law, you will not know whether there are any errors, mistakes, or problems, or things you may have missed.
If you do not speak English, you should consult a lawyer who can communicate with you in your chosen language. If one is not available, we recommend hiring a certified interpreter who will translate your instructions and the information you exchange with your lawyer. They should sign a section of the will attesting to the fact that they provided such interpretation services. Whether you find your lawyer by referral or by searching online, whoever you consult should have specialized expertise in estate law.
Once you decide on a lawyer to draft your will, they may ask for your full name and the names of your family members to run a "conflict" check. The lawyer will make sure that neither the lawyer nor the firm has represented anyone who may be adverse in interest to you, such that a conflict of interest would arise. When the conflict check clears, the lawyer may ask you to provide some information about your assets and circumstances before you come in for a meeting. They may send you a retainer or engagement letter and request a financial deposit. The retainer letter is the document that forms the basis of your lawyer-client relationship.
Next, you will meet with your lawyer to discuss your estate planning in detail. This meeting will be highly individualized and will look different for each person. As a general rule, experienced and competent lawyers will use the intake meeting not only to gather information required to advise you on your estate planning, but will also make inquiries to satisfy themselves that you have the capacity to make a will, and that you are making your estate plan free from any undue influence. You and your lawyer (and perhaps a law clerk or legal assistant) should be the only people in the meeting. If you require an interpreter, the interpreter should also be present, continuously confirming that they are translating each and every word between you and your lawyer. You may feel uncomfortable about asking a friend or loved one who brought you to the meeting to wait outside, but a reputable lawyer will require you to do just that. At all times, your lawyer should only be taking instructions from you.
Depending on whether you appear more or less vulnerable (the elderly or the infirm are considered more vulnerable), your lawyer may ask detailed and probing questions about your marital or romantic status, living arrangements, relationship with your child(ren) or caregivers, ownership of your assets, conversations you may have had with anyone about your estate planning, your medical status and whether you are taking any medications, etc. Sometimes a lawyer may recommend that you get a capacity assessment by a registered capacity assessor to ensure that you can give instructions for and sign a will, or to protect your estate against future litigation in case anyone else raises concerns about your capacity.
Your lawyer will also take a complete inventory of your assets, which should include any genetic or digital assets you may have.2 Your lawyer should consider any tax-saving options that can be incorporated in your estate planning, including the use of dual wills, if appropriate.3 Your lawyer will ask for names of family members and anyone else who could reasonably expect to be named as a beneficiary of your estate. If you are excluding any one of these people from your will, your lawyer should record any reasons you give, and advise you of the potential for litigation after your death. Your lawyer should also discuss your choice or choices for your estate trustee(s) and guardian(s), including the inappropriateness of appointing a non-resident, and whether a "majority rules" clause should be included in the case of more than two trustees or guardians.
Once your lawyer has the required information, they will prepare a draft for your review. You will meet a second time to go through the draft together and make sure you understand everything in the will and the consequences that flow from it. If there are no revisions, you will be ready to sign your will before of two witnesses who are present at the same time. There are specific requirements for the will-signing ceremony, which are called the "formalities of execution."4 It is critical that your lawyer understands and abides these requirements.
Some lawyers will give you the original signed and witnessed will, while others will store the original in a vault in their office and provide you with a copy. Another alternative is to store your will with the Superior Court of Justice. Whatever the arrangement, your lawyer should advise you not to give the will to anyone, that the original will is a critically important document, and that your estate trustee will struggle to administer your estate without it.
While making your will, you should also execute Power of Attorney documents in respect of your property and personal care, as well as any end-of-life directions (often called a "living will") you may wish to confirm in writing. These documents will ensure that you and your assets and property are looked after by someone you trust in case you become incapable of managing your own affairs. If you do not have duly executed Power of Attorney documents, any potential guardian will have to make a formal application to the Court before they have any legal authority to make decisions on your behalf.5
Once these steps are complete, you will have a legal will. Wills should be reassessed when major life events occur, such as those outlined in Footnote 1.
1 You have gotten a new job, you are moving in with your partner, you have recently had a child, you are contemplating getting married, you are separating from your spouse, you have recently been widowed, you have recently gotten divorced, your asset profile has changed, you want to include someone else in your will, you have a new grandchild for whom you wish to provide, your previously appointed estate trustee has moved out of the country, etc., etc., etc. See my article "Love and Marriage – 5 Critical Events That Can Impact Your Estate" at https://www.mindengross.com/resources/news-events/2019/11/14/love-and-marriage-5-critical-events-that-can-impact-your-estate.
2 Learn more about digital assets in my article "Make A Will Month: Who owns your Digital Assets and Personal Data?" at https://www.mindengross.com/resources/news-events/2019/11/06/make-a-will-month-digital-assets-and-personal-data and more about genetic material and your estate in "Storing Cord Blood or Embryos? Don't forget Estate Planning" at https://www.mindengross.com/resources/news-events/2019/11/01/make-a-will-month-storing-cord-blood-or-embryos-don-t-forget-estate-planning.
3 Dual wills distinguish your estate based on assets that require probate (the "primary will") and those that do not (the "secondary will"), as acknowledged in Granovsky Estate v Ontario, 1998 CanLII 13913 (ON SC)
4 Section 4, Succession Law Reform Act, R.S.O. 1990, c. S.26
5 Sections 22 – 25, and Sections 55 – 58 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.