As the holiday season draws to a close, and the cheese supply in my fridge appears to be finally exhausted, I find myself wondering who among us (or among our clients) – has had that sort of holiday season that has them ready to update their will and undo the gift to their sister that, after the fight over whether or not to add mustard to the vinaigrette, seems unwarranted and unpalatable. I have no children so my siblings would probably fall under the category of ‘people who would normally expect to benefit from my estate’. My existing will splits everything between my siblings. So how, if I want to proceed, can I disinherit my sister? What do you need to do as an estate planner to assist clients who want to remove family members from their scheme of distribution?

It is a common request, and there are some important steps to take as a lawyer to ensure that client requests withstand after-death scrutiny and that your file is properly papered to that your work will  withstand that scrutiny.

Consider the legal test for testamentary capacity: a person must be able express an understanding of the nature and extent of their property, who their beneficiaries are and the impact of the decisions they make for their estate plan. Plans which stray from the ordinary course, leaving out members of a common class of beneficiary for example, often come under scrutiny. So, if a client is determined to exclude family from their estate plan, the need to dig deeper about the who, what and why of that decision is vital.

The most important tool we have as estate planners is our curiosity – to assist a client in creating an estate plan where their wishes will be enacted is the job of the estate planner – and delving into the circumstances and rationale for excluding family is essential:

• Is this a new client to you or someone you’ve worked with for years? If a long-term client, do the new instructions fit previous behaviour? Are the instructions coming on the heels of an argument, the emotional impact of which may fade in short order?
• What is the family make up and dynamic of the client? Do they have a child for whom support is being provided? Would the intended changes contradict or support those arrangements?
• Who is the intended ‘excludee’ – a spouse? a separated or ex-spouse? one or more children? Are there legislative or other restrictions on excluding that person in part or in whole?
• Do the instructions represent a significant change from prior wills? What has happened to trigger the change?
• Are the instructions intended to equalize the playing field among beneficiaries? For example, have their been significant loans or gifts to one of three children? Are their records or documents to support those transactions? Should the paper trail be incorporated in any way into the new will?
• Is a family member driving the change? For example, is one of three children bending your client’s ear to instigate a change in his or her favour? Is that child the sole caregiver for your client? Who brought the client to you? Who is in the room when you are discussing instructions with your client?
• If a spouse or espouse is the intended ‘excludee’, are there other obligations of the client that ought to be considered? For example, is there a co-habitation agreement that provides for a division of property upon death? Would the changes contradict those obligations?
  Would the changes leave the estate plan open to challenge for support after death?
• Has the client had a recent health diagnosis or significant life event that could cloud the perception of their testamentary capacity? Grief, cancer treatment and illnesses other than dementia can impact decision making. If those are live issues for your client, will they consider undergoing a capacity assessment in order to confirm (or disprove) – testamentary capacity?
• Is this a suitable occasion for a family meeting. Particularly if a family member is going to be omitted from an estate plan entirely, will the client sit down, with or without a facilitator, and discuss their wishes with the excludee?
• And of course, has the intended ‘excludee’ expressed opinions about the proper preparation of a French vinaigrette that no person with common sense would wish to support

Some years ago, I worked with an older woman to update her will. She and her husband had previously left her estate equally among three daughters. One of the three daughters had left a career and become the sole caregiver for her parents, and after the death of her husband, the mother wanted to leave her entire estate (a house and modest savings) – to the caregiver daughter. The other daughters accompanied their mom to our initial meeting. The other daughters were in support of the decision. There was the opportunity to ask for a few mementos from the family home and there was a recognition that the caregiver daughter had sacrificed her chance at self-sufficiency in a way that allowed both parents to age in place. I had confidence that the decision reflected testamentary capacity and on a less-technical level, that the decision would not spoil family harmony.

An old acquaintance (not a client) – once told me that they wanted to exclude one of their four children from what was going to be a significant estate. The child in question had become a successful surgeon practicing in the United States. The other three children were financially fine, but not ‘U.S. surgeon’ fine. As a friend and estate planning lawyer my thoughts and advice were that my acquaintance could do as they wished, but excluding one child was pretty much guarantee to send the message that they did not love that child, and that the child was being ‘punished’ for their success, and stood a good chance of ruining the relationship among the four children. Sit down, talk with that child about your decision, leave them less if you decide, but do not leave them nothing. I was very glad that I did not have to draft that will.

So, as I mourn the lack of cheese in my fridge, and although I stand by my view that mustard is an essential ingredient in a good vinaigrette (without it, the oil and vinegar are not going to emulsify properly and the vinaigrette will separate). I have not instructed my lawyer to change my will to remove the heretical sibling. I will let this one mellow for a while and see if my indignation warrants the legal fees of a will-update.

Jane E. Martin

Scotiatrust, Estate and Trust Consultants Team Lead