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Estates & Wills & Trusts

Clearly articulated wills reduce risk of court challenges

A will may never be totally lawsuit-proof, but Toronto litigator Matthew Urback says there are steps people can take to minimize the chances it will be contested in court.

“There are a number of things you can do to reduce that possibility,” Urback, an associate with Shibley Righton LLP, tells AdvocateDaily.com.

The best starting point, he says, is to hire a lawyer who can lay out the process and make sure the proper wording and forms are used — someone who understands potential pitfalls so they can be avoided.

Urback says that a good will clearly lays out the intent. And, he adds, it is helpful if the individual clearly articulates his or her plan to the benefactors to avoid surprises later on. Trying to figure it all out later, when the individual is no longer around, can be problematic and may lead to a lawsuit.

If the directions of the will are a surprise — for instance, if one child receives more than another — it could result in animosity between siblings or other beneficiaries of the will. Urback admits such conversations can be challenging but says talking it out while the individual is still alive can help clarify his or her intentions and avoid bad feelings.

“That’s when you see a big fight between the beneficiaries,” he says. “I think a good point for people making their wills to keep in mind is to consider having a conversation with their friends and family to communicate their estate wishes.

“If there are any issues raised as a result, those can be addressed head-on. The difficulty is that sometimes when the will is revealed and nobody has any idea what happened, your best witness as to why things are the way they are isn’t there to explain.

“It’s a bit of a mystery because you can’t ask the person why they did things the way they did.”

That could include who gets the house, the cottage, investments, and the like.

One problem Urback has seen is in naming the beneficiaries. If an individual’s name is incomplete, it is left open to interpretation.

The same applies to charitable giving. Urback had one case where an umbrella group was named in the will. But by the time the will was read, the organization had split into several different groups and it was a challenge to determine which of those groups would be the beneficiaries.

That kind of a problem could occur with a will that was drafted years earlier, says Urback. Circumstances, such as how the charity is organized, change.

And as children grow and the estate changes, the directions of the will might need updating after a few years as well, he adds.

“It’s a good idea to frequently review a will and revise it when necessary,” he says.

For those who want to avoid having their will challenged, a capacity assessment could help avoid future lawsuits. The assessment will indicate that the individual was of sound mind when he or she had the will drafted.

“It’s just a good way to fend off a potential challenge,” he says. “You can never go back in time to have a perfect snapshot of the person at the time the will is made.”

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