Wrong legal information makes it harder to help aging parents

Urban myths, re-told anecdotes and fictionalized TV lawyers - they are all out there and all help add to the confusion of what is really the law and what is not. One of the main reasons I write this blog is that I know how many of you have "information" that you question. You just want to ask someone if it's true or not. I encourage everyone to keep asking questions.

There are people whose lives are made more difficult and more frustrating because they have wrong information. Take this particular reader - let's call him John - as an example. The following is part of a note I received from John:

"I can't take my parents to a lawyer to write their Powers of Attorney or wills as both are indisposed at home, and dad can't see to sign and also has slight dementia (not certified by a doctor)."

This is someone who has their hands full, in a situation that many of you probably recognize. But things are really not as bad as John thinks. Let's look at it a bit more closely, starting with John's mother.

Why can't his mother sign new documents? The only reason given here is that she is indisposed at home. That's not too unusual; many seniors have mobility issues. The comment about dementia doesn't seem to apply to her, so as far as I can tell the only issue is that she is housebound. That's easily dealt with; get a lawyer to go to her. And before you scoff at the idea, I can tell you that almost every Wills lawyer I know, including me, makes house calls. We want to make sure that seniors get the documents they need even if they can't make it to our office.

The real issue with John's mother is that she is being treated as an adjunct to John's father. John believes his father has some serious impediments to signing a will, and his mother is being swept along with that because John is thinking of his parents as a unit rather than two individuals in different states of health.

Now let's look at John's father. The first hurdle appears to be blindness. In reality, this is not a hurdle at all. Blind people sign wills every day. This is one of those nuggets of misinformation I was talking about. Every lawyer with some experience in wills can deal with this situation so if yours cannot, get a different lawyer.

The next hurdle is dementia. Of course John is right that dementia can be a serious issue, as a loss of mental capacity prevents a person from signing a will. However, John has mentioned "slight" dementia. Things have not yet progressed to the point where a doctor has been consulted, so this is apparently John's own diagnosis. While John may notice forgetful or unusual behaviour in his father, these changes may not be enough to prevent his father from signing a will. Again, John is not sure of the law as it deals with dementia and making wills.

Mental capacity doesn't have to be perfect. If it did, none of us would have a will. John's father doesn't have to be exactly the way he was when he was younger. He only has to understand the nature of a will and understand the choices he needs to make. While I understand John's anxiety on this point, I wouldn't be so quick to assume that his father lacks mental capacity. All wills lawyers are trained to determine whether any person giving them instructions has the capacity to do so and in this case I'd let the lawyer do exactly that.

I hope that John and others in his situation will understand from reading this post that it's not a good idea to rely on assumptions and on information from unreliable sources. Keep asking questions.

Is a Will signed with an "X" valid?

In the old days, people would sign documents with an "x" because they couldn't read or write. These days, documents are still occasionally signed with an "x" because even though the person signing can read and write, there is some physical impairment that prevents him or her from signing his or her name.

The physical impairment could be something that has been present from birth. It could be the result of a disease that is interfering with vision, or with motor functions, such as Parkinson's Disease. It could also be the result of an acute accident or illness situation in which the person is in a hospital bed, too weak or sick to sit up and sign properly.

These signatures are valid. In the case of a Will, the "x" signature, usually referred to as a "mark" must be explained in the Affidavit of Witness to Will that is attached to the Will. Each province has a different form for this Affidavit, but it serves the same purpose everywhere: to give evidence that the document was properly signed according to local laws.

A person signing with a mark rather than a signature would do so in front of two witness, as usual. Then one of the witnesses would sign and swear the Affidavit of Witness to Will that gives the details of the signing (e.g. that there were two witnesses, that nothing was handwritten in between the lines of the Will, etc). In the case of signing with a mark, an extra line or two would be added to the Affidavit to explain why a mark was used.

Not a lot of Wills are signed this way, but when they are, the signature is perfectly valid.

If you contest my Will, you get nothing!

Something that appears to have grown in popularity over the last few years is a clause in a Will that says if a beneficiary contests the Will, they get nothing. The beneficiary would forfeit the gift that was already left to them in the Will. Clearly this is intended to put a lid on someone that the testator expects will be unhappy with his or her share of the estate. When a client asks me to put this type of clause in his or her Will, the client always asks, "will it work?". If only the answer were as simple as yes or no!

Let's take a closer look at what these clauses are all about.

When a client asks me whether a clause restricting a beneficiary's ability to contest the Will "will work", he or she is really asking whether the clause is legally valid. In law, the question comes down to whether or not the clause is a threat. (The latin name for this type of clause is in terrorem, which means "in fear"). A threat would not be legally valid, so on the face of it, this type of clause would seem to be invalid.

So how do you prevent the clause from being a threat? One of the keys to it is to include what is known as a "gift over". This means giving the gift that the beneficiary would have received to someone else if the first beneficiary contests the Will. In other words, your Will might say that you leave $10,000 to your son Ralph. It would then say that if Ralph contested your Will to get a larger share, Ralph's share would go to your other son, Edward.

Note that you CANNOT use this type of clause against someone who is your legal dependent. A dependent is your spouse (married or common law), your minor children, and your adult children who are handicapped to the extent that they cannot earn a living. These clauses simply have no effect against those with a legal right to apply for a greater share of your estate. You could only use the clause against a beneficiary that you chose to give something to. This includes your adult children, unless they are handicapped.

I've read a number of cases about in terrorem clauses and despite the court's attempts to formulate a clear rule, the cases seem to be very dependent on specific circumstances, including whether the gift under discussion is real property or personal property. Clauses that are held not to be threats are sometimes held as invalid for other reasons (usually for being against public policy). So it's impossible to say either that the clause always works or that it never works.

It's interesting to note that in the USA, these clauses are being held as valid in several states. No doubt it's the American influence on us Canadians that is causing the upswing in requests for these clauses here, even though our courts' approach is very different.

Can a blind person sign a Will?

A Will has to be a written document, and a legally blind person would likely have difficulty reading it. This gives rise to the question of whether a blind person could legally make a Will. The answer is a resounding yes!

For the sake of restricting this discussion to the topic of making a Will despite blindness, I'm going to assume that we are talking about a person who is of legal age to make a Will and who has the required mental capacity to make a Will.

The key to making a Will for a blind person legal lies in the Affidavit of Witness to Will which is attached to the Will. Every Will needs one of these Affidavits, even when there are no unusual circumstances to consider. The Affidavit contains the evidence that all the formalities of witnessing and signing a Will were properly followed, and is sworn by one of the two witnesses who saw the Will being signed.

When there is an unusual situation, such as the Will being signed by someone who is blind and cannot read the document he or she is signing, the Affidavit will describe the unusual circumstances, and will also describe what was done to address those circumstances. In the case of a blind person, the Affidavit would have to say that the Will was read in full to the blind person, and that it was explained to him or her. It would also have to say that the blind person appeared to fully understand the Will.

This really isn't very different from the Affidavit that would form part of the Will of a sighted person, except that the Will has to be read to the blind person. Every Will, whether the testator is sighted or blind, has to be fully understood by the person who is signing it.

Obviously a blind person will want to work with a lawyer he or she trusts. A lawyer who is well-experienced in Wills and Estates law will ensure that the Will is properly drawn up, and that the Affidavit of Witness to Will is properly in place to support the Will.