That being said, when a lawyer is called upon to draft a will, he or she must keep in mind that his or her responsibilities encompass an array of interests and issues that may not be initially apparent. As a result, the lawyer will be required to make appropriate inquiries, engage in fact finding, and generally appraise the situation from an informed standpoint.
- The testator has testamentary capacity;
- The testator's expressed wishes are voluntary and informed, and not the result of undue influence or duress imposed by others;
- The testator has provided a thorough and accurate inventory of his or her property accompanied by documentation that confirms the client’s authority or ability to dispose of any of the property;
- The testator is cognizant of relevant income tax issues and other issues or limitations that may encumber his or her proposed scheme of distribution;
- The testator understands and approves of the contents of the will.
Such communications will also assist in discerning whether any undue influence or duress is affecting the testator’s will. In the process of drafting the will, a lawyer should ensure that his or her notes are complete, with information to support conclusions in respect of testamentary capacity and the absence of undue influence or duress.
Justice Hainey buttressed his decision by stating that there was no evidence that the testator was incompetent or suffered from mental disorders at the time that she executed her new will. Thus, even a “habitual drunkard” may execute a valid will if she possesses a sound, disposing mind and has the wherewithal to recall the extent or her property and the nature of the claims to which she ought to give effect.
While this certainly entails extra steps, it is absolutely vital that the lawyer discharge this duty when dealing with elderly clients in order to ensure that the will reflects only true testamentary wishes.