top of page
  • Instagram
  • Facebook
  • LinkedIn
  • Instagram
  • Facebook
  • LinkedIn
  • Instagram
  • Facebook
  • LinkedIn

GET IN TOUCH

OFFICES

The Heritage Office

5025 Orbitor Drive

Suite 301, Building 6

Mississauga, ON L4W 4Y5

The Valley Office

94 King St West

Dundas, ON L9H 1T9 

 

 

DOWNLOAD OUR
CLIENT PORTAL APP

Getting Wills Right: Avoiding Common Mistakes in Practice

Drafting wills is often seen as straightforward legal work, but beneath the surface lies a landscape where small oversights can lead to significant consequences. Lawyers who work in this area know that it is not always the complex tax planning or multi-jurisdictional estates that result in claims; often, it is the missed conversation, the unasked question, or the unchecked draft that becomes the problem.


Each year, claims against lawyers for errors in wills and estates work continue to rise, many rooted in issues that are both predictable and preventable. As more Canadians move through significant wealth transfers and families become increasingly complex, lawyers must sharpen their practices to avoid being caught off guard.


The Power of Conversations

A will that fails to reflect a client’s wishes is rarely the result of a single mistake. More often, it is the culmination of rushed meetings, incomplete instructions, and assumptions about a client’s intentions. It is easy to skip over the probing questions about blended families, stepchildren, or previous relationships, especially when a client seems clear on what they want. But these are precisely the areas that can become contested later.


Slowing down to have these deeper conversations, and taking the time to understand family dynamics, asset structures, and past commitments, is not simply best practice, it is protection. Clear, direct discussions ensure a will that aligns with the client’s reality and stand up to potential challenges from those who may feel left out.

Documentation is Your Safety Net

A carefully documented file can often be the difference between a lawyer who is dragged into a claim and one who can respond with confidence. Notes should capture not only what the client decided but why those decisions were made, especially when a will departs from previous versions or excludes certain family members.


Equally important is reviewing draft wills against your notes. It sounds simple, but in a busy practice, it is easy to skip this step. Yet it is in this cross-check that many preventable mistakes, such as a missed beneficiary or an unclear bequest, can be caught before they become a costly problem.


Beyond the Draft: Timing and Execution

There is often a false sense of security in thinking that once the instructions are taken, the hardest part of the process is over. In truth, the period between instruction and execution can be the most vulnerable. Delays in preparing or executing a will can have serious consequences, especially if a client’s health changes suddenly. Lawyers who keep files moving, and who adapt to urgency when needed, safeguard their clients’ intentions and themselves.


Similarly, the moment of execution should not be treated as a formality. Careful attention to signing procedures, witness requirements, and the client’s understanding of the document ensures that the will can withstand scrutiny later.


Knowing When to Step Back

Wills and estates work often involves long-standing family clients or friends, leading lawyers to accept retainers without fully considering potential conflicts. Joint retainers for spouses or family members can seem straightforward until disagreements arise or one party seeks changes later on.


Lawyers should remain alert to the possibility that what begins as a simple family matter can quickly become a dispute. Being clear at the outset about confidentiality, potential conflicts, and the limits of a joint retainer helps prevent uncomfortable, and legally risky, situations down the road.


Continuous Vigilance

As the demographic landscape in Canada evolves and more individuals approach retirement, the need for comprehensive and carefully executed estate planning continues to grow. Lawyers who practice in this area would be well served by maintaining a commitment to thoroughness: asking the hard questions, taking meticulous notes, reviewing documents carefully, and moving files forward without unnecessary delay. Ultimately, good practice in wills and estates is about respecting the client’s intentions and ensuring their legacy is preserved.





 
 
 

GET IN TOUCH

OFFICES

The Heritage Office

5025 Orbitor Drive

Suite 301, Building 6

Mississauga, ON L4W 4Y5

The Durham Office

190 Harwood Ave S

Ajax, ON L1S 2H6 

 

 

DOWNLOAD OUR
CLIENT PORTAL APP

bottom of page