Lawyers are expected to test clients for capacity when engaged to make a will. Typically, that involves asking questions that test powers of recollection. Those questions revolve around the extent of the client’s property (“what do you own?”) and family structure (“how many children do you have?”). Questions are also asked to determine testamentary wishes (“how would you like your estate distributed when you die?”). Lawyers often stop there. Another question might be warranted called a “bounty question,” it is designed to determine whether the will-maker has a real grasp on the “objects of their bounty.”
This article provides a brief summary on point:
When it comes time to ask a will-maker questions relating to the objects of the client’s bounty, a good practice is to ask the questions necessary to build a family tree, and record the answers. That can be done in the form of a diagram. It can be done in the narrative. A combination of the two is often used. Some lawyers stop there. They do so on the assumption that a person who can recount all of the details relating to their family must, by implication, know the persons who would naturally expect to inherit from them. An additional question might be asked to better test the ability of the client to grasp the natural objects of his or her bounty. As examples:
Question: Who might be expecting to inherit from you?
Question: Is anyone expecting an inheritance?
Question: If I asked all of your family and friends, who would tell me they were in line to inherit from you?
Question: Will anyone be surprised by your will?
Called a “bounty question” here for ease of reference, this is suggested as a best practice, not a minimum practice.
The reasoning behind asking the bounty question is as follows. First, the question takes the discussion beyond mere powers of memory and into the sphere of obligation and expectation. The power of memory necessary to recount the details requisite for a family tree is one thing. To know which of them might expect to inherit is another. The latter demands the power or ability to think empathetically. In some cases a disease or disorder of the mind might be present, sufficient to invalidate a will, that causes a dulling of the affections or inability to understand the needs and expectations of others.16 The “bounty” question tests for that.
There are other reasons to ask the bounty question. It leads into fruitful discussions on points that might otherwise remain untouched. That might include uncovering mutual wills situations or possible claims in future on a quantum meruit basis against the will-maker. Litigators are wise to remember the distinction between recollecting who is in the family tree and understanding who deserves and expects to inherit. The two concepts are different. There is case law from England demanding that the will-maker understands both. A will can be invalid if the person knows the family tree, but is not capable of appreciating the emotional impact of disinheritance on the people who deserve and expect to inherit.
*John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (firstname.lastname@example.org).