By: Rajesh K. Sharma, Advocate (LinkedIn)
Introduction
- Lawyer Responsibilities: Lawyers must ensure clients have testamentary capacity, are free from undue influence, understand the will, and comply with statutory formalities.
- Testamentary Capacity: Verify the client’s mental ability to make a will.
- Undue Influence: Ensure the client’s decisions are made without external pressure.
- Collect detailed information about the client’s assets, liabilities, and personal circumstances.
Statutory Constraints
- Dependant Support Claims: Plan for potential claims from dependants.
- Matrimonial Property Claims: Consider spousal claims under matrimonial property laws.
Other Considerations
- Understand and draft mutual wills that bind surviving spouses to agreed terms.
- Implement strategies to reduce estate administration tax, like using multiple wills and joint ownership.
- Advise on the tax implications of estate planning decisions.
- Address the impact of foreign laws on estates with international assets or beneficiaries.
- Obtain detailed instructions on:
- Estate trustees.
- Guardians for minor children.
- Funeral and burial wishes.
- Property distribution.
- Family home and cottage arrangements.
Will Drafting
- Administrative Provisions: Include powers for estate administration.
- Incorporation by Reference: Use memoranda for personal effects.
- Trust Issues: Address investment authority and trust rules.
Signing
- Formal Wills: Comply with witnessing and signing requirements.
- Alternative Witnessing: Use technology or counterparts for witnessing.
- International and Holograph Wills: Address their validity and court validation procedures.
Storage
- Advise on safe storage of the original will and implications of losing it.
Key Takeaways
- Ensuring the client’s capacity and freedom from influence is crucial.
- Comprehensive information gathering and clear client instructions are essential.
- Planning for taxes, statutory claims, and potential international issues is necessary.
- Proper drafting, signing, and storage practices ensure the will’s validity and effectiveness.