A Dead Give-Away

Did you know that deathbed wills are the original will? In medieval Europe, for all but those in high society, will-making was synonymous with efforts right before death. Luckily, this type of estate planning is no longer the status quo. However, deathbed wills have persisted as a reality of life to this date.

So what should drafting solicitors keep in mind when they get the dreaded phone call from an emergency room nurse, or the family member of a client, that someone wants a will done but isn’t long for this world? Here are three tips from Justin de Vries and I (for the full paper see our submission to the annual Six-Minute Estate Lawyer 2022 program).

Tip One: when in doubt, walk away

A popular, yet misconceived belief is that a solicitor who is sought out to make a deathbed will is stuck between a rock and a hard place. On the one hand, by taking on a client in this volatile situation, a solicitor may open themselves up to a potential negligence claim or will challenge down the line. On the other, by rejecting the retainer, it is commonly believed that a solicitor may be liable to disappointed beneficiaries if the testator passes without a will as a result.

However, this framing of the dilemma is untrue. First, the right to decline representation belongs to the lawyer. This right would be infringed upon if an initial phone call to a lawyer’s office would make that lawyer liable.

Secondly, there is no civil liability without a retainer agreement. An unretained lawyer is not liable to the testator, his estate, nor disappointed beneficiaries. At worst, the lawyer may face disciplinary proceedings by the Law Society for rejecting a potential client and leaving them in a difficult spot to secure an alternative (think small towns without many alternative choices for lawyers on a Friday night).

Thirdly, lawyers may actually be required to decline representation if they are not competent to act in a particular case. Estate planning can be highly complex on a good day. If the lawyer has had minimal experience drafting simple wills, a deathbed estate freeze or corporate reorganization would be out of their zone of competency.

Lastly, where the drafting solicitor is of the strong opinion that the testator has lost testamentary capacity, they may have a positive duty to decline the retainer.

Tip Two: when retained, act quickly and effectively

Once retained, a drafting solicitor must act to meet a minimum standard of care. This includes acting quickly and effectively, by assessing the urgency of the situation and ensuring there is no inappropriate delay. The solicitor should take all the usual steps of due diligence.

Attend at the testator’s bedside promptly, assess for testamentary capacity first, record and share this opinion on capacity, be prepared with an on-the-spot will in a worst case scenario, get the client to sign a release of information while they’re still capable, do not take instructions from anyone but the testator directly and act quickly to address suspicious circumstances or undue influence. Finally, attend at the testator’s execution of the will personally.

Tip Three: keep meticulous notes

Deathbed wills have a greater likelihood of being litigated. Therefore, the drafting solicitor’s actions should be guided by the assumption that they will be a witness to litigation down the line.

It is important to take fulsome notes of the testator’s intention, retain all copies of e-mails. Relying on memory is not recommended. Where possible, prepare a contemporary memorandum or note of observations to be retained in the file.

Nowadays, smartphones are ubiquitous. It is important to take advantage of technology and to bring a witness. Having a second lawyer or articling student attend the deathbed with you to record the meeting can pay dividends. That lawyer can also perform an independent opinion of the testator’s capacity or take notes, while the more experienced solicitor focuses on questions regarding testamentary intention.

All files should be carefully preserved physically and using a cloud-based data storage service.

The Dead Take-away

Two most common reasons for a deathbed retainer are: (1) the testator doesn’t have a will and is worried about benefitting estranged family members under the rules of intestacy, or (2) the testator wants to change their will to reflect most recent wishes. However, in some cases, intestacy is unavoidable, especially where the testator is on the brink of loss of capacity.

When in doubt, the right choice is to walk away. When taking some a complex case, it is good to keep in mind that the standard of care is not perfection. By following the tips set out in our paper, solicitors can maximize their chances of “surviving” a deathbed retainer. Happy drafting!