Friday, April 15, 2016
Are lawyers to blame for drafting wills with bad choices of executor?
Posted by Lynne Butler
"Lynne, you and others advise people to be careful and responsible in their choice of who to appoint as Executor. But what about the lawyer drafting the will? Why is this person not professionally obligated to ask difficult questions in the course of creating a powerful legal instrument that could break apart and financially ruin an entire family? There seems to be an element of 'hit and run' the way legal experts are allowed to prepare these documents without using care or even common sense in doing the job. For example, it is astonishing to me that there is no requirement that a lawyer ask if the person to be named Executor is in chronic debt, has criminal convictions, or - even more important perhaps - is on speaking terms with the rest of the family. But lawyers are allowed to create these trustee time bombs in people's estate plans and remain safe from consequences because the damage done is not realized usually until decades later. And then grieving families are left to deal with the damage. I think there should be some requirement that a lawyer must investigate the risks he or she is creating while drafting a will and facilitating the appointment of trustees.Otherwise, what is the justification for charging a lawyer's fee for the service?"
I can't speak for all lawyers of course, but I can tell you that when I have conversations with my clients, we talk about their choice of executor and why the clients think the named person would be a good choice. If I don't agree, I say so, believe me. I make suggestions to get my clients thinking and talking about their choices.
When I do my seminar on the top 10 estate planning mistakes, one of the top 10 is making a bad choice of executor, because I agree with you that some really poor choices are being made.
As for the obligation on the lawyer, we are bound by a code of ethics that is enforced by the provincial law societies. One of our obligations is that we do not take on work that we don't know how to do well. Unfortunately, lawyers who don't do many wills think that they are a lot better at will drafting than they really are, because they have a fill-in-the-blanks mentality. There is a surprisingly large amount of risk for lawyers who draft wills, and some do get disciplined by the law society, or sued by beneficiaries when they have done a bad job.
One obstacle that is thrown up by clients is that MANY people won't tell the lawyer things about their choice of executor that they perceive to be negative, such as debt, addictions, criminal record, etc. Why won't they? Because the person they've chosen as executor is one of their kids.
Parents don't want to say anything bad about their kids to outsiders, or in many cases even believe that the kids are as bad as people say. They excuse the child's behaviour out of loyalty. I can ask a dozen questions about the son being named as executor but if all the client will say is that he's just the nicest guy ever, how am I to know the difference? In most cases I haven't met their kids. I have no way of knowing the truth. Parents are remarkably, stubbornly, tenaciously unrealistic about their own kids, and in the context of estate planning, this willful blindness comes back to bite them.
And as for common sense, that is by far the scarcest commodity on the planet. Clients insist that kids who haven't spoken to each other in years will "learn to get along" even though I know they won't.
Clients can sometimes be cost-conscious when they should be value-conscious. I have many times recommended that a client whose children squabble non-stop should use a trust company as an executor. Some assume it's too expensive without even being willing to hear the price. They think it'll be cheaper if the kids do it, even though it won't be cheaper if the estate ends up in a fight. I can't force anyone to accept my recommendations.
Anyone who hires a lawyer should try if at all possible to find someone who specializes in the relevant area of law. Yes, it makes a difference in the quality of the will and the quality of the advice. It makes a HUGE difference. I know some lawyers who say "most people appoint their kids, is that what you want to do?" and that is the full extent of the discussion. Clients tell me this all the time when they describing why they no longer use their former wills lawyer. Some lawyers simply send out a questionnaire to be filled in and don't actually hold a discussion. I agree that's not nearly good enough.
It's not always easy for consumers to know which lawyers specialize, partly because lawyers have traditionally been very restricted in the content of their advertising. For example, we are not allowed to say to the public that we are experts in an area of law. This has supported the false impression that all lawyers do all kinds of work, and makes it tough for clients to find the right lawyer.
I realize that in smaller towns, there are no lawyers who specialize in wills. In my view, it's worth driving to the nearest large centre to have this important document done, but not everyone agrees with me. People often tell me things such as their will is being done by the lawyer who lives next door to them, who usually does criminal law or securities law, but they talked the neighbour into doing a will as a favour. How on earth is that a favour if you're getting a document done by someone who hasn't drafted one since he graduated from law school? Talk about lack of common sense, on both sides!
There is no quick fix to this situation. It's going to take more responsibility by both the lawyers and the clients to ensure that good choices are being made, and that those choices are being properly documented for the day when the will is called into service.