Making Wills – You Don’t Want to Make These Costly MistakesEd Olkovich
Once upon a time, making a will was easy. It was also easy to make expensive mistakes. This can happen if you don’t get the expert help you need. When it comes to blended families, the danger of making multiple mistakes increases.
I’ll tell you the shocking story of a stepson who arranged a will for his mother. The mother’s will cut out her second husband from her estate. You don’t want to repeat this family’s blunders when you sign a will in a hospital.
Frank Wiseman was married to Lilly for over 35 years. Lilly signed a will in the hospital on October 15, 2008 while having chemotherapy. She died shortly thereafter on November 12. Lilly disinherited her husband. Frank contested the will in court.
At a trial four years later, the British Columbia court reviewed the following information:
• the evidence of the mother’s capacity from doctors,
• the undue influence of her sons from her first husband, and
• the mistakes made by the notary who made the will.
The entire case appears as Wiseman v. Perrey 2012 BCSC 1681 (CanLII). I will refer to some important parts of the decision. All square brackets in the quotes refer to paragraph references.
Lilly was receiving chemotherapy. She was treated by Dr. Martin, who noted:
…At times over the past 3 weeks, Mrs. Wiseman has been confused due to the high dose steroid. Monday, Oct. 27, she was disoriented as she was hypoxic and ill. Today she is oriented X3, understands her diagnosis & prognosis, but occasionally tangential about the history of her assets & the merging of the two families…
Dr. Martin was not an expert in cognitive assessments. Dr. Manjunath made a psychiatric competency assessment of Ms. Wiseman and his report noted:
…Progress notes indicate that she [Ms. Wiseman] had developed psychological symptoms and symptoms of psychosis even prior to the starting of the steroids. Hence, I conclude that she has been likely temporarily noncompetent some time soon after the onset of chemotherapy until a couple of days ago…
… “it is likely that she had significant memory impairment and disorientation in the last month or so”. …Ms. Wiseman had “some confusing thoughts that she might have made a will in the last week or two” but that she was “not very clear about this”. 
A notary did the will
Into this confused state entered Roy, a notary public. He prepared a Will, a Power of Attorney and a transfer of property for Ms. Wiseman. The evidence was that the son gave instructions to the notary for their mother. The mother never reviewed drafts before she signed them. The will allowed Frank to live in Lilly’s half of the house while he was alive. It also included this strange disinheritance clause:
I have intentionally omitted to provide for my husband Frank, as he and I maintain our assets separately in order that our respective children may inherit, nor for any of my other heirs, or persons claiming to be my heirs, whether or not known to me, living at the date of my death. I HAVE PURPOSELY made no provision for any other person whether claiming to be a beneficiary of mine or not. IN THE EVENT any undesignated person becomes entitled to a share in my Estate, I leave the sum of ONE ($1.00) DOLLAR as full and final satisfaction of that entitlement. 
The notary told the court that he did not know that Lilly had been married for over 35 years. He did not see Lilly read the will over before she signed it.
The notary did not take the necessary steps to protect the will. The circumstances surrounding the will suggested that Ms. Wiseman did not have knowledge or approve the will contents. This placed the burden on the executors of her estate to satisfy the court their mother had testamentary capacity.
Ms. Wiseman’s sons from her prior marriage had vested interest in the estate. They communicated instructions to Roy. The notary failed to ask Ms. Wiseman:
• what her wishes were;
• assess her capacity or perform a mini mental state exam;
• consult with her attending doctors;
• did not see or hear her read the will;
• have her explain back the will’s provision to him;
• did not know the total value of the estate;
• could not explain why the will did not provide for a husband of 37 years.
The court explained Roy had a duty to prove Ms. Wiseman had testamentary capacity to make a will.
I’ll paraphrase this part to help you understand what Roy was supposed to do:
(a) it is not enough that a client superficially appears normal and can answer simple questions
(b) if the client is weak and ill and particularly if they are changing an existing will, a professional has a heavier duty
(c) it is not enough to ask routine questions and record simple answers to prepare a will
(d) the lawyer must ensure true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood. 
Ms. Wiseman also signed transfers of property into joint ownership and a power of attorney. Can you guess what the judge said about them and the mother’s will? My next post will give you all the answers.
Bear this in mind if you have no will. The court issued a decision on December 3, 2012. The family spent four years paying their lawyers.
See my previous blog post:
About Edward Olkovich
Edward Olkovich (BA, LLB, TEP, C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of Executor Kung Fu. Visit his website, mrwills.com, for more free valuable information.
© Edward Olkovich 2013