There is a current court case in which two sisters are fighting over their inheritance. This was reported by Straits Times "CJ: Be diligent when making wills for elderly" dated 11 August 2010 in which Ms Caroline Chee, 48, and her elder sister Muriel, 54, had each produced a will by their late mother, Madam Goh Hun Keong, who died in 2004 at the age of 83. The lower court and the Court of Appeal agreed that the latest Will is not valid because the testator was no longer of mental capacity to write a new Will. But gist of the report was that Chief Justice is calling for lawyers to be more diligent in Will writing. Why did he do that?
According to the newspaper report, “The court found the lawyer hired by Ms Muriel Chee … had prepared the 1996 will without having spoken to Madam Goh (the testator) about its contents. All the instructions the lawyer took came from Ms Muriel Chee instead. Madam Oh (the lawyer) neither explained the documents to Madam Goh (the testator), nor took attendance notes during two meetings with Madam Goh.”
To me, the above just means that the Will writer is an instructions taker. I want to share two cases which I came across relating to the subject matter of mere instructions taking.
In the first case, a lawyer took instruction from a prescribed form stating the wishes of the testator. There was no prior interview beforehand. The Will instruction was quite simple: equal shares among the testator’s children. The testator went to the lawyer’s office and was shown (for the very first time) the drafted Will. It appears correct. The testator and two witnesses signed and that’s it. The entire matter was completed in 3 minutes. When I saw the Will, I almost fainted. Apparently the lawyer thought that the children were minors. Because minors generally do not have an estate, it is often advisable to state “equal shares among surviving children.” But the testator’s children are adults with their own children. The lawyer should have clarified with the testator whether he wanted the estate to fall onto his children’s estate or not. The implication is tremendous. If let’s say there are 3 adult children who have their own families. If say child 1 predecease the testator, writing “equal share among surviving children” would mean that child 1’s family gets NOTHING if child 1 predecease the testator. When I asked the testator is this the intention, they were confused and did not realized how serious the mistake was. In fact, they did not really understood simple terms like the roles of Executors. It is the job of the Will writer to explain everything. How could there be any proper explanation if the meeting took place for only 3 minutes? I need to confess that the testator saw the lawyer under my recommendation. I referred this person to the lawyer. When I saw how terrible the Will was done, I have to apologise to my client that the lawyer I recommended had let him down. Since it was my fault as I was the person who recommended the lawyer, I paid for the entire fee for the new Will out of my own pocket. I felt very sore about the whole matter.
In the second case, the lawyer (a different one from above) involved was not under my recommendation (phew!). The elderly lady instructed the lawyer to write a new Will and revoke the previous one. The new Will removed one of the beneficiaries who is child informally adopted. The lawyer took instructions without giving any advice. Subsequently, the testator was guilt ridden for nearly a decade for having removed the adopted child from the inheritance. Later I found out that the reason why the testator removed the adopted child’s name was that some “kay po” or busybody person instigated her to have her adopted child removed because only “real children” should be the rightful heirs. When I came to know about this, I told this client that her Will should be in accordance to her true wishes. Full stop. She took my advice and quickly amended her Will and is now no more guilt ridden. So what happened in this case? There are two lessons here. Elderly persons can be easily manipulated by others. Even if the elderly person has the mental capacity to decide, they are nevertheless quite vulnerable. We just need to see how many elderly folks were cheated out of their retirement money to buy into high risk dangerous investments. The second lesson is that it is very important for professionals like Will writers to do due diligent rather to be instruction takers to protect against these vulnerable individuals. By the way, I written about this case in my blog here: Question of being guilt stricken
In the above two cases, there were some common problems which is typical of the way many Wills were written:
- There was little or no fact finding done by the Will writer.
- Because there was no fact finding, the Will writer cannot analyse the situation and make any recommendation. Any recommendations (if any) will have no basis since it is based on thin air.
- The onus lies on the client/testator to instruct the lawyer on what to write. The assumption is that the testator knows what instruction to give and is able to understand all legal jargons and is fully aware of any practical issue that can arise in the future. But please, if the testator is an expert himself he can write his own Will because it is not necessary to engage a lawyer to write a Will.
- Only a few minutes were given for the testator and lawyer to meet up. The Will writer prefers to spent as little time on the case maybe because the cost of the Will is so low (just a few hundred dollars usually). Many people think that spenting $200 is too high. Frankly speaking, that kind of cost will probably get the attention of the Will writer for only 5 minutes.
Anyway, after the bitter experiences, I’ve changed my mode of operation in estate planning and I no longer pass clients to lawyers. Although the Will is still written by legally trained personnel (for which I have a commercial link up with), I will handhold my clients throughout the entire process. The last thing I want is to compensate my clients again for nonsensically Wills. Once bitten twice shy. Enough is enough.
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