Shortly after I became an attorney, a close and dear friend from my pre-law school university days contacted me and asked if I could help him write a testament. Being contacted in this manner was not unusual.
As most lawyer colleagues will surely corroborate, legal questions and “small” requests begin to come in from family members and friends almost from the first day that one enters law school – never mind what happens once one is actually admitted to the Bar!
This particular request was unusual because this dear friend was not the type to ask for help, and close as we were, it had been a little while since I had heard from him. Although I was quite busy, as is every young lawyer starting their career, I was happy to help him and do the best job I could. I did not inquire as to why he was making this request as I considered such a question to be both personal and irrelevant. He surely had his reasons.
In law school, we learned about the three types of testaments that can be drafted in Quebec. The best, of course, is the proper notarial will that is executed by a notary according to a number of strict formalities, signed by one or two witnesses, and registered with the Chamber of Notaries or the Bar Association. This is the ‘Cadillac’ of wills because it is presumed valid and there are no court formalities to undergo when the unfortunate day comes for the will to come into effect. It usually takes some time to put together properly. At the other extreme is the very simple Holograph Will, which has no formalities other than it be written and signed personally by hand, by the testators themselves. The downside is that the Holograph Will has to be proven in Court before it can take effect, and this can take some time and create extra obstacles.
As an idealistic young lawyer, I wanted to draft the best for my friend and so of course I recommended the notarial will. I reviewed my law books and then sent him by e-mail a long and detailed list of questions and all the information I would need to start an initial draft.
Being busy, I did not follow up right away, and to my shame, was even a bit glad that he did not answer immediately as I was indeed quite busy. I followed up a month later and he said he was doing his best to work on the list. Three months later, I received news of his death. It is always a shock to lose a friend. In this case, however, this was a friend who had reached out to me for my help in anticipation of his death, and I had failed to deliver. I do not think I have ever felt so helpless.
Of course his succession would be divided according to the rules of intestacy (without a testament), but that is not what he wanted and that is why he reached out to me for help in drafting his own testament. And in that respect, I cannot overcome the sentiment of having let him down in his final request to me, and this is something I will never have the opportunity to rectify. That failure is something that I still carry and for which I will feel the weight for many more years to come. But, it has also guided my practice.
Now, when a client informs me that they wish to draft a testament, I have them draft a holographic will immediately, that very same day. That holographic testament then gets sealed in an envelope and put somewhere safe while we work on a more formal and proper notarial will.
As the days go on, the client can rewrite the holographic will any number of times if they wish. We can even use a copy of the holographic will as a guide when drafting the notarial will. The important thing is that from the moment someone announces to me that they need a testament, they will at least have something written, even if it is not (yet) the best instrument that can be drafted. A simple testament, with no special legalistic language, takes only a few minutes to write. You can even do so immediately upon reading this column. Will you?
By Daniel Romano BCL, LL.B., MA