A lawyer may refuse to draft a will if they have legitimate concerns regarding the testator’s capacity to understand and make decisions about their estate. Testamentary capacity, a legal requirement, ensures that a person has the mental ability to understand and appreciate the nature and effects of the decisions involved in creating a will. A lawyer must ensure that the client comprehends the extent of their assets, recognizes the people they wish to include or exclude as beneficiaries, and fully understands the implications of distributing their estate in the manner outlined. If the client is unable to demonstrate these abilities due to cognitive impairment, mental health issues, or other reasons, the lawyer has a duty to decline the representation.
In cases where there are doubts about a client’s capacity, a lawyer might conduct a basic assessment by asking relevant questions, seeking to clarify the client’s understanding of their decisions. However, if the responses suggest confusion, memory lapses, or an inability to understand the consequences of their decisions, the lawyer may advise a formal medical or psychiatric evaluation to confirm capacity. For example, if a client’s responses indicate misunderstanding about the nature of their assets or a sudden inclination to make irrational decisions that diverge sharply from previous intentions, the lawyer may recommend a professional assessment before proceeding.
Refusing to draft a will under these circumstances is important not only to protect the client’s interests but also to prevent potential disputes or challenges to the will after their passing. Courts are vigilant about ensuring that a will truly reflects the wishes of a person with sound mind and judgment. Consequently, lawyers who proceed in drafting wills under suspicious capacity conditions risk exposing the estate to litigation and ethical violations.
What Happens If There Are Capacity Issues?
If there are concerns about whether someone has the capacity to make a Will or Power of Attorney, it is advisable to arrange for a formal capacity assessment. A licensed capacity assessor, regulated by the province, often provides the most reliable evidence of an individual’s capacity or lack thereof. The Office of the Public Guardian and Trustee maintains a roster of licensed assessors, with further information available on Ontario’s official website. While there is a cost associated with capacity assessments, they are often invaluable for formally determining capacity.
If a person is found, by any means, to lack the capacity to create or modify a Will, no alternative mechanism exists to facilitate such a change or creation of a Will, and therefore, it cannot be made or altered.
When there is no Will, Ontario’s Succession Law Reform Act (SLRA) outlines who is eligible to inherit the deceased’s assets, excluding any jointly-owned assets, which pass directly to the surviving joint owner. Notably, the SLRA currently recognizes only legally married spouses as beneficiaries, not common-law spouses. While a common-law spouse may have rights to the deceased’s assets, these rights must be individually established and claimed.
We Can Help:
Creating a Will is a vital step in safeguarding your legacy and ensuring your loved ones are cared for according to your wishes. Whether you’re in Ontario or Saskatchewan, a well-crafted Will provides clarity, peace of mind, and control over how your assets will be distributed. At Zaidi Legal PC, our dedicated team of experienced lawyers is here to guide you through the process, crafting a comprehensive Will that aligns with your unique needs and goals. Secure your future and take control by contacting us today.
Ready to protect your legacy? Contact Zaidi Legal PC to discuss your needs, and let our skilled team help you create a tailored Will that reflects your wishes. Our expert lawyers are here to provide clarity and empowerment for you and your loved ones in times of uncertainty. Don’t wait to put your plans in place—prepare now for a secure future! Schedule your consultation by clicking here.
The information presented in this blog post is thoroughly reviewed for accuracy and authenticity as of the date of publication, and is believed to be a reliable reflection of the law to the best of our knowledge. However, as the legal landscape is constantly evolving, we cannot guarantee the ongoing accuracy or completeness of this information beyond the date of publication. This material is provided for informational purposes only and is not intended to substitute for professional legal advice. Any actions taken based on the information contained on this website are undertaken at your own risk. It is always recommended to seek the advice of our team of legal professionals before making any legal decisions.