In preparing a last Will and Testament, the hope is to craft a document that is iron clad, unfaltering and impervious to attack. A will is, after all, our last "kick at the can": it is the final vestige of our wishes, and, by definition, we are not there to assist with its interpretation once we have passed on.
There are several methods used by practitioners to fortify a will from attack. First and foremost, the best method of protection is to ensure that all of the client's affairs are in order and that all sources of possible conflict have been considered by the party drafting the will. The vast majority of litigation is due to a testator failing to recognize a contentious family dynamic which could have been taken into consideration by an estate planner ahead of time.
Since leaving estate affairs out of order is the most frequently cited spark igniting family conflict over a will's validity, it is of paramount importance for practitioners to advise clients to consider a family conference in order to facilitate proper communication between beneficiaries. The goal of such a conference is to prevent future estate litigation by focusing time and attention on known areas of contention within the family. A family conference often eases tensions and allows for open dialogue and the airing of concerns prior to the drafting of a will. Such conferences also ensure that an estate plan reflects an individual's most current wishes after having reflected upon the various opinions of other family members regarding what course an estate plan should take.
The use of a family conference is especially important for blended families, due to the greater complexity involved in estate planning brought about by a more involved family dynamic.
The use of seasoned practitioners with experience in narrow fields of practice, as opposed to a general practitioner attempting to provide one-stop-shopping, is advantageous, particularly if an estate is complex. Cutting corners to avoid paying top dollar for a will can often result in ambiguities leading to future litigation. Likewise, making changes to an already drafted will without legal advice often leads to unintended consequences.
The family dynamic itself will often be thrown into a state of disarray upon the passing of a patriarch or matriarch who may have acted as the glue that held the family together. The reaction to the passing of a relative is not predictable and can't always be determined by hypotheticals; therefore steps must be taken to ensure that the desired consistency in the family is maintained.
While there is no single sure-fire way to prevent a will challenge, there are certain techniques which can effectively reduce the possibility of future litigation:
A no contest clause, colloquially referred to as an in terrorem clause, is often used in an effort to curtail a possible will challenge. When a beneficiary contests a will, the in terrorem clause is triggered, with the effect of invalidating the challenging parties inheritance. Instead, these assets are distributed as though the beneficiary predeceased the testator. Such a clause has typically been upheld as enforceable by courts in Canada.
While there is no guarantee that a will will remain unchallenged, by creating hurdles to litigation, such as a no contest clause, a testator exacerbates the pressure and costs of fighting a legal battle. Therefore, a will can effectively be made impermeable to attack simply by virtue of the fact that the cost of litigation is too overwhelming.
In the end, the best defence against litigation is effective communication amongst family members and financial and estate advisors. Preventative action is of paramount importance. The goal of a testator should be to create a global estate plan - not simply a will; thereby, providing for a more comprehensive fortification of one's final wishes.
*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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