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Monday, July 19, 2010

What if someone dies before the lawyer finishes their Will?

If someone has given instructions to a lawyer to prepare a Will, the lawyer has an obligation to prepare the Will in reasonable time. There isn't any number of days or weeks specified for lawyers, and it will depend on the circumstances. For example, if you meet with your lawyer to talk about Wills and the lawyer tells you that he or she is going on vacation for three weeks starting the next day, obviously you cannot expect to have your Will finished in that time.

I know of one or two cases where clients gave instructions to the lawyer to go ahead, and many months later they are still waiting for the lawyer to go ahead. I know of one who waited a year. This isn't good customer service for any service provider, so I would expect the customers to go somewhere else. However, customers sometimes feel that they "have to" use that lawyer because they've used him or her before, or because they know the lawyer personally. To me, neither of those is a reason to allow anyone to give you such poor service.

In my experience, the lawyers who take forever to prepare a Will are those who don't prepare them very often and keep putting off the task because it's unfamiliar. Lawyers who specialize in Wills have it down pat. They are up to date on everything from case law to boilerplate. Even in their busiest times, they can get a draft Will to a customer within a week or two.

In your meeting with your lawyer, you should be given an estimate of how soon your work will be done. This will ensure that both the lawyer and the customer are on the same page on the meaning of "reasonable time". If you have a complicated scenario that involves business valuation, consultations with an accountant or searching for missing information, you should expect that to take longer than usual.

A lawyer who doesn't prepare a Will in a reasonable time runs the risk that the person who asked for the Will might pass away before the Will is made. If this happens, the lawyer could be responsible to any beneficiaries who would have inherited something if the Will had been made, but didn't get anything simply because the lawyer took too long. In the last few years there have been a handful of Canadian cases in which this has happened.

The client has an obligation too. "Giving instructions for a Will" doesn't mean casually mentioning to the lawyer when you meet in the supermarket that you really need to make a Will. Giving instructions means sitting down and having a meeting in which all ideas and goals are discussed.

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