This blog has been written by Karen La Caprara, Counsel at Fasken LLP.

It can be easy as a will-drafting lawyer or clerk to approach drafting a will in the same manner as drafting a commercial contract. Like a commercial contract, it is critical that a will does what it is intended to do, provides a clear path to get there and includes options for various eventualities, all in a clear and unambiguous way. It is not difficult to get so caught up in the technicalities that you lose sight of the deeply personal document that a will can be to a testator. I was reminded of this when recently working on revised wills for a testator who had just lost a family member who they were very close to. With this in mind, I thought I would set out some practices that I strive to use in order to be what I hope is a thoughtful and compassionate will-drafter:

1. Deceased Beneficiaries: When a client wants to update their will because a loved one has passed away, I try to still include reference to their loved one in the document in some manner, rather than deleting it entirely. If a client’s spouse has died, it is quite easy to simply delete the spouse from the will and have the alternate gifts to family/friends/charity become the primary gifts. I try though to still include reference to the deceased spouse. For example, if the will includes a wish as to how a particular asset or matter is to be dealt with, it might be appropriate to use “it is my wish and my late spouse, ’s wish that…”. If a client has lost a child or sibling and the gift to that deceased child or sibling is now to go to their surviving children or spouse, rather than simply naming the children or spouse, refer to them as the children or spouse of the deceased child or sibling, followed by their names, if appropriate.

2. Naming Beneficiaries: When providing for their children in their will, I find that most testator’s want to see their children’s names in the will. They do not simply want the residue clause to read “to my children in equal shares per stirpes”. This can become particularly noticeable when friends or more distant family members may be named in the will as recipients of legacies but the testator’s own adult children are not named. Caution is of course warranted here in the case of a testator who may have additional children. We want to ensure that children born or adopted after the date of the will are captured by the will and do not want to rely on a client updating their will immediately following such event.

3. Charitable Gifts: It is sometimes true that a charitable gift is included in a will primarily for the tax credit that may be received. But very often it is included, or at least a particular charitable organization has been chosen, because of the close connection a testator has with that charity or with the cause that it supports. Even where these gifts are given to the charity for its general purposes without any restriction on its use, if a client has indicated that they wish to give to a specific charity because of, for example, the support the charity provided to a loved one, consider adding language to that effect (“in honour of my late spouse, ”, etc.).

4. Gender-Neutral: While there was a time where it was common-practice in will-drafting to assume a gender based on a name and refer to his or her as the only options, this is no longer appropriate or acceptable. It also is not necessary. I am sure that there are numerous appropriate approaches to ensure inclusivity and clarity in this regard, but I find that the approach I now use and often see is to (a) refer to specific individuals by their name (rather than using pronouns, especially given that while we may know the preferred pronouns of a testator and their immediate family, we may not have been advised of the preferred pronouns for every cousin, friend, advisor, etc. to be named in the will), and (b) use gender neutral terms when referencing relationships (spouse, partner, child, sibling, parent, etc.)

5. Context Specific: All of the above suggestions of course depend on the specific testator. Some clients who are more private may not want to include certain personal information that is not strictly necessary for the proper/intended interpretation of the will, particularly if the will is likely to require probate. Others may view their will in the same way they would view a commercial contract and do not see it as a personal document. They may prefer to include what is necessary for the administration and division of their estate only (and to leave personal information and messages outside of their will only). I try to get a sense of this when taking instructions from clients but if I am uncertain on the appropriate approach to a specific provision, a quick note asking the client if what I have included is consistent with their wishes, if they are comfortable with it, etc. is a simple way to find out.

This list could go on and on, and as I continue to learn from other estate professionals (comments and additional suggestions welcome!) and from my inevitable mistakes and blunders, I am sure I will add to it. They may seem like relatively small things but I think they make an important difference in how comfortable a testator feels with their will and how it will be received by their loved ones. Overall, I think the goal is to demonstrate to clients that I have listened to them, that I am keeping their values, wishes and priorities in mind when preparing their documents, and that they can have a say and personalize what is in their estate planning documents.