Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP
It feels like everyday a new television show or movie is released and sometimes (if we’re lucky) we get to see our profession played out on the big screen. But perhaps “lucky” isn’t the right word, since most of the time, what we see on our televisions isn’t always the most accurate representation of the world of estates.
Estate planning and the administration of estates portrayed in various media outlets, such as television shows, movies and even books, tends to get a bit of a “glow up” for dramatic effect. Often times, I get questions from friends and family members such as “is that really how it happens?”, so it’s only a matter of time before our clients start coming to us with similar questions about the authenticity of these types of scenes.
Perhaps one of the most well-known misconceptions is the ever dramatic “will reading” scene. Friends and family gather from near and far to hear what has been left for them when a relative passes away. Tensions running high, family members who haven’t spoken in years returning and unknown faces showing up can all add to the dramatic flair of this well portrayed scene. However, the reality is that, more often than not, the reading of a Will can be quite anti-climactic. In most cases, an executor or a family member will contact us to let us know of a client’s passing. After completing our due diligence, we will release either a copy or the original of the Will to the named executor and may even meet with them to go over the provisions of the Will in order to assist with the administration of the estate. It also may not always be necessary for everyone to meet in person, and in today’s day and age, there are many options to meet virtually. While the reality isn’t quite as exciting as the movies, we can appreciate that these scenes are pretty dramatic, but likely not going to play out the same way in real life.
There is always room for tension among family members, and in some cases, emotions take over and someone is looking to contest the validity of the Will. This scenario is a very real possibility, especially if expectations concerning perceived entitlements are otherwise not being met. To avoid any potential backlash, we as practitioners should ensure we keep proper notes of any and all meetings with clients, and if there is any question as to the capacity of our clients, we should consider a capacity assessment. Specifically stating in the Will that someone has been excluded can also be a useful tool since it can show that they weren’t simply “forgotten”. Sometimes clients may even request to leave personal notes with their documents explaining their reasoning behind certain gifts. Taking these steps can help to prevent the need for contesting a Will and can provide anyone questioning the Will with an understanding of the client’s wishes.
One of the last points, and arguably the most important – making sure the people you have appointed as executors and/or guardians are aware that they have been appointed. Again, movies and television shows may do this as it can definitely add a certain “shock element” to the plot, but it’s important to emphasize that clients should first check with the people they want to appoint to make sure they are actually willing to take on the role. If a client has named someone who isn’t ready and willing to take on either role, it could create delays in the administration of their estate. As well, to avoid further delays, encourage clients to let their named executors know where the Will is safely stored (i.e., they shouldn’t hide it in a book and hope that someone will know where to find it, like some movies have done…).
While we get a lot of enjoyment from these movies and television shows, they should remain just that – something that can be enjoyed but not taken too seriously. We can ensure our clients’ expectations of their estate administration won’t necessarily be like what they see on their tv screens by clearly setting out the facts so there is no confusion between reality and fiction.