Author Topic: revising a will  (Read 4491 times)

scrubbyfish

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revising a will
« on: August 29, 2015, 03:14:55 PM »
I have a very comprehensive estate plan (assets, Trust, guardianship for kid, power of attorney, etc). Because our situation was so convoluted, I paid quite a bit to have it done. When I did, I asked about how much it would cost to revise any aspect. I thought she said "oh not much, just a couple of hundred dollars".

When I did a revision recently (names only), I was billed over $1000.

Now I want to revise it further. Can I just take the document, scan it into Word or retype it, change the details myself, send out docs for signing, etc? Or I can have a cheaper lawyer or a notary public do that? i.e., The lawyer doesn't own the copyright to the will's template or something, right?

Cathy

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Re: revising a will
« Reply #1 on: August 29, 2015, 03:29:04 PM »
...The lawyer doesn't own the copyright to the will's template or something, right?

There are no intellectual property law impediments to your proposed dealings with the will documents. In Canada, the threshold for copyright protection is "originality", which is defined by "an exercise of skill and judgment". CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para 16. I do not know whether the lawyer who drafted your will would be able to persuade a court that he or she owns copyright to it. Luckily, it doesn't matter, because the Copyright Act, RSC 1985, c C-42 ("Act") contains various exceptions that would cover your proposed activities. For example, it is not an infringement of copyright for an individual to reproduce a work for "for the individual's private purposes", subject to conditions. Act 29.22. This provision has apparently never been interpreted by a court, but it looks like a slam dunk for your proposed activities, so I wouldn't worry about it.


That said, the more difficult problem for you is whether your new documents will constitute a valid will for the purpose of provincial estate law. I express no view on that.

scrubbyfish

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Re: revising a will
« Reply #2 on: August 29, 2015, 03:32:08 PM »
Thanks, Cathy! As I would be changing no other words in the will -only replacing some names and addresses- I can't see that its effect would change at all, so that feels safe enough.

AlwaysLearningToSave

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Re: revising a will
« Reply #3 on: August 30, 2015, 07:21:31 AM »
Please be careful with self-help revisions to your estate plan. Part of the reason you hire a high-price lawyer is to have a knowledgable person plan your estate wholistically and to take the care necessary to ensure it is valid, encorceable, and unambiguous. Our firm has seen many instances of people trying to do something themselves-- or following the advice of some other pure-of-heart but empty-of-head professional-- only to have a mess to clean up that costs more than if they had just hired a lawyer to do it correctly the first time.

Perhaps consider going back to your lawyer once more, but revise your plans in such a way that you don't need to regularly revisit the plan when circumstances change.

TomTX

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Re: revising a will
« Reply #4 on: August 30, 2015, 09:57:23 AM »
Please be careful with self-help revisions to your estate plan. Part of the reason you hire a high-price lawyer is to have a knowledgable person plan your estate wholistically and to take the care necessary to ensure it is valid, encorceable, and unambiguous. Our firm has seen many instances of people trying to do something themselves-- or following the advice of some other pure-of-heart but empty-of-head professional-- only to have a mess to clean up that costs more than if they had just hired a lawyer to do it correctly the first time.

Perhaps consider going back to your lawyer once more, but revise your plans in such a way that you don't need to regularly revisit the plan when circumstances change.

Really? Just to update some names and addresses? That's like taking your car back to the dealer to change the wiper blades and air filter. You're not trying to build a car from scratch, just do some minor maintenance.

woodnut

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Re: revising a will
« Reply #5 on: August 30, 2015, 10:12:15 AM »
A $1000 does seem a bit high unless trusts add some complications.  We recently did the same thing, updating a few names after 10 yrs.  His template also had some minor changes since the initial docs were done.  It cost us $325, basically an hour of the lawyers time.  Maybe ask and understand why it was $1000.  If you don't like the answer, then maybe look for a new estate planning lawyer.  I personally would not do the DIY route.  Part of the reason I hire an estate attorney is to assist my agents, should any of the docs ever need to be executed.  If I had some DIY docs, then I could potentially leave a mess for my agents and attorney to cleanup thereby increasing costs to the estate.
« Last Edit: August 30, 2015, 10:18:22 AM by woodnut »

scrubbyfish

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Re: revising a will
« Reply #6 on: August 30, 2015, 11:28:00 AM »
It seems (this week) like everything costs a lot in Canada, and I need to stop the hemmorhage of legal and medical costs. I've spent a good $9000 on the estate planning since my kid was born, and to get another $1000+ bill, after having arranged otherwise, makes me ill.

What are the risks in replacing *just* names and addresses myself?

What are some cheaper alternatives that are just as solid?


I paid the lawyer to develop a solid plan; I don't want to keep paying anyone $1000+ to change names and addresses.

KMMK

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Re: revising a will
« Reply #7 on: August 30, 2015, 11:50:06 AM »
You might be able to refer (within the will) to an attached list of names/addresses separate from the will. But I'd want to check with a lawyer. Here is what it mentions in my CFP course, mostly about bequeathing specific items and changing your mind about who gets them, but it sounds like a similar situation:

"Often a testator or testatrix has specific possessions he or she would like to see go to certain beneficiaries, whether it is jewellery, a piece of artwork, or a favourite rocking chair. These items and the intended beneficiary can be listed directly in the will. Alternatively, the testator or testatrix can append a list to the end of the will and make reference to that list in his or her will...

Note: Although the list attached to a will would not have a binding effect on the executor, an executor would be unlikely to act contrary to such a list. The concern is that the client would have to change his or her will every time the client changed his or her mind about one particular item. By using the list (or "memorandum"), the client could change his or her list at his or her discretion without having to change the will."
The preceding is copyright by CIFP Canada, and is provided for general informational purposes only.

Cathy

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Re: revising a will
« Reply #8 on: August 30, 2015, 12:13:40 PM »
What are the risks in replacing *just* names and addresses myself?

There tend to be some fairly specific formal requirements for wills pertaining to who can sign it, who can witness the signatures, etc. See generally Wills, Estates and Succession Act, SBC 2009, c 13 ("WESA") 36 et seq. For example, in your OP, you mention that you plan to "send out" the documents for signature, but a valid will must be "signed by 2 or more of the witnesses in the presence of the will-maker". WESA 37(1)(c) (emphasis added). There is a risk that you may not strictly comply with all of the requirements such that your new will may be invalid. This requirement I have quoted is just one among many tricky requirements and it is quoted for illustration purposes only.

I want to be very clear that I am not attempting to summarise all of the requirements for wills in this post. There are many requirements and I have not listed them here. You cannot rely on this post as a source of information for how to make a valid will.

The Legislature of British Columbia has explicitly confirmed that persons are entitled to conduct their own legal affairs without retaining a lawyer. Legal Profession Act, SBC 1998, c 9 ("LPA"), 15(1)(a). However, by doing so, you take on all the responsibility to research the law and understand what you are doing, including learning estate law.

Under normal principles of contract law, parties are generally free to agree to somewhat unfair bargains. Courts generally do not review contracts for reasonableness. Unconscionability is a ground to set aside contract terms in some cases, but it's much more specific than just the agreement being unfair. The theory behind the general rule is that you are free to retain independent counsel for an appraisal of a proposed agreement before entering it. However, agreements with your own lawyer are special because the lawyer is both your advisor and your counter-party in the agreement, and thus there may be a serious imbalance of power in the drafting of the agreement. Thus, in BC, the common law contract rules have been overridden by the Legislature with respect to contracts with a lawyer.

Subject to conditions, a person who has entered into a contract with a lawyer may apply to the Registrar of the Court to have the contract reviewed to determine whether it is "unfair or unreasonable". LPA 68(2). If the agreement is indeed "unfair or unreasonable", the Registrar has the power to "modify or cancel the agreement". LPA 68(6). The decision of the Registrar can be appealed to a judge for further review. LPA 68(8). There are also separate provisions authorising the Registrar to review specifically a "lawyer's bill" to determine whether the charges contained within are authorised by law. LPA 70-75. This statutory framework provides the appropriate remedy if your true complaint is that your lawyer is charging excessive fees or otherwise has placed unreasonable terms into your agreement with the lawyer.
« Last Edit: August 30, 2015, 06:28:18 PM by Cathy »

AlwaysLearningToSave

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Re: revising a will
« Reply #9 on: August 30, 2015, 12:51:23 PM »
It seems (this week) like everything costs a lot in Canada, and I need to stop the hemmorhage of legal and medical costs. I've spent a good $9000 on the estate planning since my kid was born, and to get another $1000+ bill, after having arranged otherwise, makes me ill.

What are the risks in replacing *just* names and addresses myself?

What are some cheaper alternatives that are just as solid?


I paid the lawyer to develop a solid plan; I don't want to keep paying anyone $1000+ to change names and addresses.

Having never seen your estate plan, I cannot comment on whether the changes you want to make are significant or not. Also, I am an American lawyer and it appears you are Canadian, so even if I did see your estate plan, I still could not comment.

But the fact that you have spent nearly 10k so far suggests to me that your estate plan includes relatively high-level asset protection planning and/or tax planning. The risk is that what appears to you to be a simple change may in fact have greater consequences than you realize. It could change tax consequences. It could result in some assets not being disposed of properly. It could increase administrative costs after your death. And in American jurisdictions, if you don't carefully follow procedural formalities in executing the amendment, the amendment may not be legally effective at all, in which case you have at best left a mess for your heirs to clean up and at worst set the stage for contentious and costly litigation.

Or it could be just as you suspect and making the changes would not create any problems at all. I have no idea. And that is the point. You don't know what you don't know. That is why you hired the lawyer in the first place. If the change to your estate plan is truly not significant, it should not cost $1,000. But if the change is significant, it could cost that much or more.

My biggest question is: why is your estate plan written in such a way that it needs to be frequently amended? A well-written estate plan (in the jurisdiction where I practice) should not need to be amended frequently unless your circumstances change significantly or you change your mind as to the significant goals of your estate plan. If the amendments are the result of you changing your mind, then you are the only one with control over how frequently you change the plan and the complexity of those changes. If the amendments are necessary because of significantly changed circumstances, your estate plan may no longer fit your life circumstances, in which case it may require a wholistic change to your estate plans. If it's just because your lawyer has drafted the estate plan in such a way that the lawyer is stringing you along for needless amendments, that's another problem entirely.

Remember: good lawyers aren't just filling out forms. There is a lot of careful thought and planning that takes place before deciding what paperwork to generate and how to draft it. Just because it looks like a simple change doesn't necessarily mean it is. Ultimately it is your choice whether to make the changes yourself. I just don't want this forum to give you a false sense of security that changing names and addresses is okay to do on your own regardless of circumstances.
« Last Edit: August 31, 2015, 07:51:43 AM by AlwaysLearningToSave »

GizmoTX

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Re: revising a will
« Reply #10 on: August 30, 2015, 01:12:21 PM »
We had our wills written to list 3 people in series for executor, each major bequest, springing POAs, etc., not just one (unless a major charity); if the first one in a list is dead, incapable, or unwilling, it goes to the next in line. This eliminates a lot of changes unless a listed choice becomes unacceptable to you or all 3 become unavailable. Our "lists" of names & addresses are in the last section or addendum, making them easy to find, review, & if necessary update without searching through the entire document (which also reduces change fees). For executor, our #1 is each other's spouse, #2 is our adult son (only child), & #3 is an estate bank (we have considerable assets).

AlwaysLearningToSave

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Re: revising a will
« Reply #11 on: August 31, 2015, 08:04:57 AM »
We had our wills written to list 3 people in series for executor, each major bequest, springing POAs, etc., not just one (unless a major charity); if the first one in a list is dead, incapable, or unwilling, it goes to the next in line. This eliminates a lot of changes unless a listed choice becomes unacceptable to you or all 3 become unavailable. Our "lists" of names & addresses are in the last section or addendum, making them easy to find, review, & if necessary update without searching through the entire document (which also reduces change fees). For executor, our #1 is each other's spouse, #2 is our adult son (only child), & #3 is an estate bank (we have considerable assets).

This is a great way to structure an estate plan.  The more contingencies you cover in the plan from the beginning, the less likely it is you will need to pay to have the estate plan changed.  The estate plan should be written in a way to account for as many foreseeable changes in circumstance as possible.  It is still prudent to revisit your estate plan every few years just to ensure it still fits your life circumstances, but, again, a well-written estate plan should not require frequent amendment. 

Edit to Add:  I am an American attorney, speaking only of my experience in the jurisdiction where I practice.  This is not legal advice, but rather general information and it should be taken with many grains of salt.
« Last Edit: August 31, 2015, 08:07:39 AM by AlwaysLearningToSave »

scrubbyfish

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Re: revising a will
« Reply #12 on: August 31, 2015, 08:11:25 AM »
We had our wills written to list 3 people in series for executor, each major bequest, springing POAs, etc., not just one (unless a major charity); if the first one in a list is dead, incapable, or unwilling, it goes to the next in line. This eliminates a lot of changes unless a listed choice becomes unacceptable to you or all 3 become unavailable. Our "lists" of names & addresses are in the last section or addendum, making them easy to find, review, & if necessary update without searching through the entire document (which also reduces change fees). For executor, our #1 is each other's spouse, #2 is our adult son (only child), & #3 is an estate bank (we have considerable assets).

This is a great way to structure an estate plan.  The more contingencies you cover in the plan from the beginning, the less likely it is you will need to pay to have the estate plan changed.  The estate plan should be written in a way to account for as many foreseeable changes in circumstance as possible.

This is what I did. However, now I'd like to name some charities instead of siblings in one of those contingencies, but I'd have to pay another $1000 to do that. Seems like there must be a cheaper way to do this as needed...

AlwaysLearningToSave

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Re: revising a will
« Reply #13 on: August 31, 2015, 09:00:34 AM »
We had our wills written to list 3 people in series for executor, each major bequest, springing POAs, etc., not just one (unless a major charity); if the first one in a list is dead, incapable, or unwilling, it goes to the next in line. This eliminates a lot of changes unless a listed choice becomes unacceptable to you or all 3 become unavailable. Our "lists" of names & addresses are in the last section or addendum, making them easy to find, review, & if necessary update without searching through the entire document (which also reduces change fees). For executor, our #1 is each other's spouse, #2 is our adult son (only child), & #3 is an estate bank (we have considerable assets).

This is a great way to structure an estate plan.  The more contingencies you cover in the plan from the beginning, the less likely it is you will need to pay to have the estate plan changed.  The estate plan should be written in a way to account for as many foreseeable changes in circumstance as possible.

This is what I did. However, now I'd like to name some charities instead of siblings in one of those contingencies, but I'd have to pay another $1000 to do that. Seems like there must be a cheaper way to do this as needed...

Here is what I might do if I were you:

I might have a frank and candid conversation with my attorney about my discomfort with the cost of the last revision.  I would tell my attorney that at the time the plan was originally drafted, I understood it would cost $XXX to amend the plan, but the last time I amended it, it cost $XXXX.  I would tell the attorney that I am considering another change but that I do not think it is a significant change and I am unwilling to pay $XXXX again.  I would tell the attorney the specific change I am considering making, I would ask for both (1) an hourly-fee estimate, and (2) a flat-fee quote, and then I would decide whether I am comfortable with the proposed fee arrangements.  If the lawyer gives me a number I am comfortable with, I would instruct the lawyer to make the change according to the fee structure I choose and, if I choose the hourly fee, I would at the same time remind the lawyer that I expect the fee to be in line with the estimate. 

I would have this conversation over email so there was a written record of my comments and the lawyer's fee estimate.  I would bet that if I had this conversation with my attorney, the final bill would align well with the fee estimate.  In that case, I would go on my happy way and feel more confident that I know how to manage my relationship with the attorney.  If the final bill did not align with the fee estimate, I would confront the lawyer with the original fee estimate, demand an explanation for why the fee is higher (there should be no good reason, as this is likely a relatively predicable fee) and offer to pay the amount of the fee estimate in full satisfaction of the bill.  Then I would consider whether to find a new lawyer for future estate planning, knowing that the first bill from a new lawyer is likely to be relatively high because the new lawyer will need to sift through the old lawyer's materials. 

Some lawyers are reluctant to give flat-fee quotes in some matters because it can be difficult to estimate how much time the matter will take.  The difference is in who bears the financial risk of the matter taking more time than estimated: in an hourly-fee arrangement, the client bears the risk and in the flat-fee arrangement the lawyer bears the risk.  Consequently, you will usually find that a flat-fee quote is higher than an hourly-fee estimate because the lawyer makes a high-side estimate of the fee and then hopes to perform the work more efficiently to earn a premium profit.  The trade-off for the client is certainty in the amount the client will be billed for the work. 

Again, this is not legal advice.  It is simply how I might approach the situation if I were in a situation similar to yours.  There is no "right" way to go about this.  But remember that you are employing the attorney, not vice versa, so you should not be afraid to take control of the relationship.

scrubbyfish

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Re: revising a will
« Reply #14 on: August 31, 2015, 09:11:04 AM »
Thank you very much, AlwaysLearningToSave! Yes, this is what I need to do now.

The last bill, of over $1000, included an item that I subsequently questioned. (The lawyer had apparently taken a step that I had not requested and would not have requested or agreed to, that would have taken a considerable amount of time, and that worked against me. I did say that, and ask how much of the total was a result of this item. I'm still waiting to hear back on it.)

AlwaysLearningToSave

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Re: revising a will
« Reply #15 on: August 31, 2015, 09:53:39 AM »
The last bill, of over $1000, included an item that I subsequently questioned. (The lawyer had apparently taken a step that I had not requested and would not have requested or agreed to, that would have taken a considerable amount of time, and that worked against me. I did say that, and ask how much of the total was a result of this item. I'm still waiting to hear back on it.)

Lawyers work for many different types of clients.  Some clients view the relationship as one where "I hire you to do whatever is necessary to take care of me," and don't want to be bothered with the details.  Other clients are more hands-on, more cost-conscious, like you, and only want specific, limited services.  I wouldn't go so far as to think that your lawyer was trying to drive the bill up, but rather think that your lawyer believed that your request to revise the estate plan also included a request to do whatever else is necessary to bring it up to snuff.  It sounds like you got burned the first time, but the silver lining is that now you know that you need to be more deliberate in defining the work to be performed by this attorney.  I would be willing to bet that the lawyer will be responsive to your desire to change the dynamic of the relationship because the lawyer will have a better understanding of which type of client you are.  If the lawyer is not responsive, you will know that the lawyer is not a good fit for you and that it is time to shop around elsewhere. 
« Last Edit: August 31, 2015, 10:00:54 AM by AlwaysLearningToSave »