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Tuesday, September 29, 2020

Don't draft wills for clients if THIS seems like a good idea to you


I'm really ticked off. Last week a client came to see me for a second opinion on her will, which had been drawn for her by a lawyer here in town. 

The client has several children, one of whom is a disabled adult who will always need someone to manage money for them. The lawyer prepared a will in which nothing was left to the disabled child ("A"), but the share that would have gone to A was instead to be paid to another one of the children ("B"). There would be a verbal agreement that B would take care of A, but nothing in writing. The client was told by the lawyer that there was no other way to deal with the disabled child's share.

The client signed the will but thought that it "didn't feel right". She talked to friends and did some research, and suspected that there were other things that could be done for her disabled child. And of course she is right. There are plenty of other things that can be done. The method chosen by the lawyer who drew the will was one of the worst choices available. It leaves A in very vulnerable position. Imagine, for example, that B passed away and his estate passed to his wife. There goes A's inheritance. With no written agreement in place, there is nothing for A to rely on to recover anything.

The reason I'm ticked off is that the lawyer who drew this will has been around long enough to know better. He advertises his will-drafting services and presumably draws up plenty of wills. He should not tell the parents of disabled adults that there is "no other way" to protect their children's inheritance. We've all run into clients who think that legal solutions such as trusts are too complicated and refuse to work with them, but this client wasn't one of those. To the lawyers and law students reading this post, if you think the solution advised by this lawyer in this case is a good idea, you need to stop drafting wills today. Right now. 

I have prepared a new will for this client using a combination of two trusts. She will put the first $100,000 into an Income Support Trust (unique to Newfoundland and Labrador, specifically created to avoid cutting a beneficiary off provincial benefits) and the balance into a Henson-style trust. The client has now created safe trusts for her child and has created legal rights for A that will endure even if child B passes away.

I'm proud of the client for seeking a second opinion. Many consumers don't do that even when their gut tells them things don't seem right.

3 comments:

  1. Not all lawyers are created equal.

    There are many lawyer complaints ie Law Societies but most people never get to hear of these complaints. Just try and find info re Lawyers and misconduct in Ontario. It's really a Secret Society. IMO.
    Lynne, not many lawyers would have posted such a reponse re another lawyer in their area. The old boys Lawyer network is alive and well in my neck of the woods. I wonder how common this is in smaller towns and cities? I have learned a great deal over 15 years with my Estate Matter.

    ReplyDelete
    Replies
    1. I suppose different provinces do different things, but in our province the Law Society webpage lists all lawyers who have been disciplined or disbarred. You can also search their names and see the decisions against them online. I don't think many clients do that, though.

      I don't live in a big city. Everyone knows each other here, or at least knows OF each other.

      Lynne

      Delete
  2. Lynne,
    Perhaps you know of a better way of getting - see below.
    list of lawyers disciplined or disbarred in Ontario LSUC ( googled as below)
    https://www.google.ca/search?sxsrf=ALeKk01Q7o4Nl5up6cKN2aYCqmUbfqiFBA%3A1601402578285&source=hp&ei=0nZzX92sDdDs_Qbdg7aYCQ&iflsig=AINFCbYAAAAAX3OE4myyOt77QgwnGutTzi4J-s8uH8I9&q=lawyers+disciplined+suspended+or+disbarred+in+ontario+LSUC&oq=lawyers+disciplined+suspended+or+disbarred+in+ontario+LSUC&gs_lcp=CgZwc3ktYWIQAzIFCAAQzQIyBQgAEM0CUPIXWMORAWDSrQFoAHAAeACAAaUBiAG5C5IBBDEuMTGYAQCgAQKgAQGqAQdnd3Mtd2l6&sclient=psy-ab&ved=0ahUKEwjd3cS--Y7sAhVQdt8KHd2BDZMQ4dUDCAg&uact=5
    What comes up first.
    https://lso.ca/protecting-the-public/current-regulatory-actions
    Webeye

    ReplyDelete

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