This Div is a JS Trigger
Issue 41 | September 2016

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Playing devil's advocate & proofing the "proof": Reducing challenges to a will

When preparing wills, it is important to consider your overall strategy to reduce the risks. Wills and estates can be a minefield of hidden details, where playing devil’s advocate with your client’s relationships and systematic proofreading will help reduce that risk.

In preparing a client’s documents, often the parties most likely to challenge a will are not direct beneficiaries, but simply those who were involved in past interactions, scenarios or conversations with the deceased. It is important to anticipate potential challenges to the document, as one never knows what acquaintances could come out of the woodwork after all is signed and done. Make a detailed account of your client’s past and present relationships, marriage and/or business history and living arrangements, and use LIANS’ Probate questionnaire (living) and Probate questionnaire (deceased) as guides to asking the right questions and what notes to make in the file.

Think about how the assets will be distributed to identify potential sources of conflict that would be vulnerable to a challenge. Make detailed notes in the file with regard to the testator’s reasoning behind specific provisions – these can serve as evidence to the testator’s mental capacity and the implications of the particular bequests and devises.

The lawyers can also use their file notes to provide their personal impressions of the testator’s capacity and to address any inquiries made that suggest the testator was not subject to undue influence.

Who’s proofing the “proof”?

 

It’s pretty simple advice, but based on some of the claims we see, warrants reminding – taking the time to properly proofread each will you draft will drastically reduce your risk of a claim.

How do you improve your proofreading accuracy? Consider the following steps:

 

Allocate enough time
Unless completion is urgent, don’t draft and proofread a will on the same day. You’re much more likely to spot errors after you’ve had a break from the document.

 

Focus
Proofread in a quiet place, one where you’re unlikely to be interrupted and where you’re most likely to be able to concentrate at the level required.

 

Print a copy
Many proofreaders find it easier to spot errors once onscreen content comes off a printer. In addition, printing a document may also reveal formatting issues that went unnoticed in the e-version of the will. 

 

Read the will out loud
This will help you identify errors your eyes may have skipped over.

 

Render details consistently
Confirm correct spellings of the relevant parties and other details, then use these spellings consistently.

 

Scrutinize facts and language
When proofreading, look out for language errors as well as significant errors relating to the will’s details. Be sure to fact-check the document as you proceed, paying attention to each fact alleged. Each time, ask yourself if the fact requires further investigation. Cross-reference the will against your client notes and review both sets of information carefully with your client. If anything in the will seems unusual or contradicts instructions from an earlier version of your client’s will, confirm the provision with the testator and document the reasons in their file.

 

Find a second pair of eyes 

Finally, hand the will over to someone who didn’t draft it. Over familiarity with a document can diminish your ability to spot problems.