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Friday, April 15, 2016

Are lawyers to blame for drafting wills with bad choices of executor?

When a lawyer drafts a will that contains a really foolish choice of executor, is that the fault of the lawyer? A reader recently wrote me a note suggesting that to be the case. While I agree that some lawyers could certainly do a lot more to help clients make better choices, I know from personal experience how hard it can be to convince a client that one of their kids is not the best candidate for the job. Read on to see the note, and my comments. And please feel free to add your own thoughts at the end of the post.

"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.

8 comments:

  1. I agree that there should be a discussion about the executor to help the client decide, but I think it is ultimately the client's decision and the lawyer should not be blamed. Besides, it's not easy to predict - people's circumstances can change a lot in the time between being appointed executor and needing to act.

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  2. DebApril 16, 2016 at 2:25 AM
    I agree that there should be a discussion about the executor to help the client decide[..]
    If only that 'really' took place. I recently did my will and little discussion took place. Granted, my will is rather simple but still...
    All lawyers ie estate lawyers are not created equal. We rely heavily on an expert lawyer to help and guide us as most of us have little to no knowledge of the process. I give Lynne Butler a great deal of credit for what she does in her Blog. Few lawyers come close to what she does or offers. Disclosure,I am not affiliated with LB in any way. I do agree Deb, when all is said and done, it is the client that makes the final decision.

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    Replies
    1. Thanks, Webeye, I appreciate the support.

      The lawyers who do a lot of wills are having the conversation. It must be really hard to be a consumer of legal services. When clients are leaving my office, they always say things like "I had no idea what to expect but this was great" and lots of them hug me. I get the feeling that going to a lawyer is not a positive experience for most people, even if it's just to get a will done, and they don't feel they can or should insist on having certain discussions.

      You and Deb are right that at the end of the day, the client is the one who decides. When that happens, all we can do is draft the will, then do a memo to our file about how the client insisted on it despite legal advice.

      Lynne

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  3. Also a bad idea to use a lawyer who drafts Wills for $100, they do that with the hope of the executor coming to them to act as the estate lawyer at which time the lawyer makes lots of money. While lawyers may say that this is not a conflict of interests if they don't do anything that causes harm to the testator or the execution of the estate: The incentive to gain the legal fees from the estate can and has prevented lawyers from doing a good job of making sure that the Will is made with a sound mind and well drafted. I believe that there should be a regulation preventing the $100 Will "thing" from being done for anyone who has more than $100,000 in assets in order to prevent lawyers from luring in elderly wealthy people to make a quick Will change. Ask me why I think this way!

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    Replies
    1. You make a good point about the $100 wills. Think about it. The lawyer typically charges between $200 and $400 an hour, but is going to charge you $100 to meet you, find out your goals and needs, draft a document, then meet with you again to sign it? Who in their right mind would think they are getting good service for that price?

      I recommend that clients look for a set job price for a will. Most of the good wills lawyers I know will quote a fee for a "wills package" that includes a will, power of attorney, and health care directive that's not based on an hourly rate. They (and I) can do this package economically because they do plenty of them.

      Having said that, some clients need more than a will. They need an estate freeze or a family trust or a dozen other things. That's going to cost more. But for most of us, a wills package at a set price is the best option.

      And I'm afraid to find out why you think that way!!!

      Lynne

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  4. I agree with Lynn - changing someone's mind about their idea for executor can be nearly impossible. I like them to ask, "Does this person have the skills, and background to carry out the task? Does he or she really have the time, including the probability of outliving the testator? Is the executor truly impartial with the integrity to carry out the role without being unduly influenced?"

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  5. Hi Lynne, my father remarried when I was 8 and my stepmother has been more of a mother to me since especially in the past 10 years. She introduces me as her daughter, adores my children and is actively involved in our lives. I've just found out that neither my children nor I have been mentioned in her will which is so hard to believe. My father says it's because of her daughters which again is shocking because I consider us to be close as well. The family knows that my father doesn't have anything to leave me in his will yet my step mother stands to inherit a considerable amount of money in the near future from a sibling. Do I have a right to contest her will? If so what proof do I need? Kindly let me know, as I don't know if this is something to confront before her passing? Thanks Lynne!

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    Replies
    1. In my view, you're not entitled to anything from your stepmother. She has no legal obligation to you, and apparently feels no moral obligation to share with you. I know it seems harsh when she treats you like a daughter, but the law is about legal rights, not feelings, so IMO you're out of luck.

      Lynne

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