Anyone can draft a will, but instructing a competent, qualified lawyer to draft a will is your best chance of reducing the risk of a future dispute. The expert wills lawyers at Rogerson Law have years of experience drafting wills that best protect the interests of the testator and the beneficiaries. Our team includes specialist estate lawyers who represent estate beneficiaries and executors.

In a recent case¹, a retired financial adviser (F) drafted the testator’s will which was described as “terribly drafted” by the judge, and led to serious problems. It appointed F as the testatrix, and the sole beneficiary was Kathy Budai (a paid caregiver). Her entitlement was, however, made subject to limitations on the terms under which she could inherit.

Kathy applied to court in relation to the validity of the following clauses:

6.1 Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.2 Should Kathy Budai (my paid care giver) break her promise to me and place me back into the hospital for any reason then she will not inherit anything. Should any form of machine or treatment be used to prolong my life against my wishes then she will inherit nothing. Should she be investigated or charged with any inappropriate care during my last days or death the she will receive nothing. It is my decision that this hospital visit is to be my last. I have chosen to pass away in my home without any further attempt to keep me alive. Kathy Budai has agreed to this action. Absolutely no action is to be taken to prolong my life and suffering.

6.3 Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate. She may give away the funds in any way she sees fit. She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last. There are no restrictions to what she may do with the balance of the Estate.

The court ruled that the first clause (6.1) was invalid as it was a “bald prohibition” to challenge the will “in any way” and was contrary to public policy on the basis of the in terrorem doctrine. This doctrine requires three criteria to be satisfied, and which were present in this case:

the legacy must be of personal property or blended personal and real property
the condition must be either a restraint on marriage or one which forbids the donee to dispute the will, and
the “threat” must be “idle.” In this case, it was an idle threat as there was no provision for who would inherit in place of Kathy

Part of clause 6.2, “Should she be investigated or charged with any inappropriate care during my last days or death then she will receive nothing”, was also void as contrary to public policy (but not void for uncertainty as Kathy had claimed).

Para 6.3 was ruled to be valid. The ability of the executor to disburse funds in any way she saw fit roused suspicion – not least because the executor was also the will drafter and could, under the terms of the will, disburse the estate to herself if Kathy was disinherited. However, suspicion in and of itself was not enough to strike out that provision.

Untrained
In the words of the judge, the will in questions was “a perfect example of why untrained people should not attempt to undertake complicated matters on behalf of other people. If [the testator] had gone to a competent lawyer, I doubt that there would have been the many problems that have occurred to date with respect to his will”.

How can we help?
If you are considering drafting a will; or if you are a personal representative facing a claim from a beneficiary or other individual; or if you believe you have a valid claim in relation to a will or a deceased’s estate, contact the probate and estate litigation lawyers at Rogerson Law for urgent advice.

Our Toronto will lawyers can help you draft a will in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and associated offices in North York and Ottawa.

¹2014 ONSC 5530 (CanLII)