But what can the drafting lawyer expect? Unless they are added as a party, their role is confined to giving evidence at trial about the preparation of the impugned will, and any other circumstances relevant to the litigation that is in their direct knowledge, such as their discussions with the deceased and any family members, and any suspicious circumstances that could suggest that the deceased was unduly influenced.
In preparing for giving evidence at trial, the drafting lawyer obviously must know the date that they are expected to give evidence in court. They will likely be aware well in advance of the actual trial if they are represented by counsel, as their counsel will likely be co-operating in the scheduling process, or at least be aware of it. Perhaps the will drafting lawyer will be served with a summons to witness, or perhaps their lawyer will make arrangements for their attendance without the formality of a summons. Either way, the will drafting lawyer needs to know whether the trial is to take place in court or virtually, and hopefully the date and time that the parties expect to reach them as a witness and complete their examination.
At trial, the drafting lawyer will be examined-in-chief, then cross-examined and then potentially re-examined by the lawyer that conducted the examination-in-chief. The pace and strategies of these examinations vary significantly depending on the lawyers asking the question, whether they are “friendly” and what the issues are. The examination-in-chief is likely going to be conducted by the lawyer for the party propounding the will. They are required to ask open, non-leading questions. Given that they are propounding the will, the questions will be intended to elicit evidence that will support their client’s position that the impugned will is valid. This is the drafting lawyer’s chance to explain how they took reasonable steps to assess the deceased’s testamentary capacity and took the deceased’s instructions without any undue influence.
The lawyer for the objector will then cross-examine the drafting lawyer. The objector will be trying to elicit evidence that would support their client’s position that the will should be found to be invalid. This may involve calling into question the will drafting lawyer’s observations, challenging the steps the lawyer took to ensure that the testator (1) had capacity, (2) understood his or her assets, and (3) was acting freely in giving the will drafting lawyer instructions free of undue influence. The cross-examining lawyer will attack the will drafting lawyer’s notes, or lack of notes, and will impeach the will drafting lawyer if he or she says anything different from their examination or if they say anything that is not reflected in their notes. While the lawyer propounding the will can re-examine the will drafting lawyer after cross-examination to clarify evidence from the cross-examination, they will still be confined to asking non-leading questions and those questions must directly relate to evidence given on the cross-examination.
The will drafting lawyer can then expect their evidence to figure prominently in the trial judge’s reasons for judgment. The thought of this may be unpleasant for the drafting lawyer, particularly where the lawyer for the objector has attacked the credibility or competence of the drafting lawyer. For good or bad, the trial judge is going to have to address this in the reasons, which will potentially be reported and will be available to the public forever.
Will drafting lawyers therefore must be well-prepared for their role in will challenge litigation. This does not start when the trial is coming up. It must start when the lawyer is first contacted by the potential client looking to prepare a new will. Even then, the will drafting lawyer must contemplate that maybe one day, that will will be subject to challenge and the will drafting lawyer is going to be a key witness in litigation. A lunch and learn seminar that discusses trials of will challenges, hosted by Wagner Sidlofsky LLP, is scheduled to take place on Oct. 11, 2023, starting at 12 p.m. Whether you are a will drafting lawyer, an experienced estate litigator or a novice, this free Zoom seminar is worthwhile for counsel to attend and enjoy seasoned experienced litigators discussing these pivotal issues in litigation. For more information and to register please access the following LINK.
Peter Neufeld is partner and a member of Wagner Sidlofsky's LLP’s estate and commercial litigation groups.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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