One of the most emotionally charged issues faced in estate planning is disinheritance. The nature of disinheritance often causes questions to arise surrounding the testator’s mental capacity and family dynamics when they drafted their will.
A recent decision in Roe v. Roe (2024 ONCA 179) serves as an important reminder of the role that estate planning lawyers play in in this process in ensuring that all necessary steps are taken to protect both the validity of a will and the testator’s intentions when addressing these sensitive issues.
In Roe v. Roe, Beverly’s 2005 will disinherited her son, Mark. This was a change from her prior wills, where her estate had been evenly divided among her four sons. Mark challenged the will, claiming that Beverly lacked testamentary capacity due to her Alzheimer's diagnosis and suggesting that his brother, Rick, may have unduly influenced her decision.
While Beverly’s lawyer did obtain a medical report to confirm her capacity to make the will, supporting her ability to do so, the main issue in this case stemmed from the lack of clear documentation explaining why Beverly chose to disinherit Mark. Beverly’s decision was rooted in family tensions, including accusations of elder abuse against Rick. However, these reasons were not sufficiently documented, which made Mark’s challenge harder to refute.
Ultimately, Justices Tulloch, Hourigan, and Dawe upheld the will, concluding that Beverly had testamentary capacity and was not under undue influence.
Roe v. Roe serves as a great reminder of two best practices for estate planning lawyers, especially in cases where disinheritance is involved:
Keep Detailed Notes Regarding Capacity: It is crucial to keep detailed notes in the client’s file that support their mental capacity to make informed decisions. This includes discussing and documenting any relevant medical issues discussed and, where applicable, any medical evaluation reports provided by the client. These notes serve as a record that you’ve taken appropriate steps to assess the client’s capacity, ensuring you have documentation to demonstrate due diligence if a dispute arises in the future.
Ask the Right Questions About Family: Understanding the family dynamics is important in every estate planning case, but especially when disinheritance is involved. By discussing these dynamics with your clients, you may uncover potential issues that your client may not have fully considered. It's important to ask about any family conflicts or personal issues that could influence their decisions. Additionally, if a testator is disinheriting a family member, be sure to document their reasons in detail and, where possible, back them up with evidence.
Roe v. Roe showcases the importance of clear note-taking and careful consideration when navigating disinheritance. By maintaining detailed records and fully understanding family dynamics, estate planning lawyers can ensure that a testator’s wishes are properly documented and protected. Following these best practices not only helps avoid disputes but also strengthens the integrity of the estate planning process.
Comments