Virtual Meetings with Wills Lawyers
Lawyers are regularly interviewing clients on Zoom and other web-based platforms. Beyond interviewing and taking instructions from clients, changes to Manitoba law have enabled wills lawyers to witness wills and other estate planning documents virtually. This option was not available pre-pandemic.
With videoconferencing becoming more and more common, lawyers need to consider the additional challenges inherent to virtual meetings.
Lawyers are to take instructions directly from their clients. In the wills context, lawyers are also assessing the client’s capacity in accordance with the Banks v Goodfellow case. Wills lawyers also need to be alert to the possibility of pressure or influence guiding the decision-making of the client. It may be harder to catch this kind of influence or determine whether the client is using any aids in answering questions when conducting meetings virtually.
Traditionally, lawyers have interviewed their clients in person. When a client is face-to-face with the lawyer, on their turf, the lawyer has more control. The lawyer knows there are no recording devices in the room. The lawyer knows who is present or within earshot of the meeting. The lawyer can see whether the client is referencing notes. All of this is more difficult to control for in a videoconference context. If a client’s eyes are darting around on the video call, you can’t know whether it’s a pet causing distractions or a threatening family member lingering in the room. You can only ask and hope for an honest answer.
If an interview is to take place by video, the lawyer will have to be creative in making sure that no one is in the room prompting the client, and that the client does not have papers in front of them (serving as cheat notes) relating to their assets, family tree, and other details that they should properly recall from memory. The lawyer may go so far as to have the client turn their camera around the room to show no one else is present and that no papers are in front of them.
The technological capabilities of the client also become a factor. Technologically-challenged clients may rely on other family members to set up and operate the videoconference platform. In those situations, it can be extremely difficult or impossible to completely remove the supporting family member from the process.
It’s not all bad. Now that lawyers can meet and sign documents with clients virtually, it overcomes a pre-existing barrier. Rural clients have more options. Persons with disabilities or immune comprised individuals do not have to leave their home to attend the lawyer’s office. It’s a step forward in access to justice in the wills context.
Another benefit, is the ability to easily create a video record of the interview and capture evidence relating to the client’s capacity. The video record has to be comprehensive (the entire interview), and the lawyer has to deploy good process (asking all the right questions). For a detailed description of proper videotaping protocol in this context see, “Taping Wills Instructions” (2020) 39 ETPJ 186 (by Clendenning and Poyser), providing the law and practice points relating to taping will instructions and the admissibility of the recording in future court proceedings. Unless a thoughtful process is implemented, many taping sessions simply create a record of the lawyer’s poor process. In that event, the taping may only serve as a record of the lawyer’s negligence.
As videoconference meetings become more normalized in the world of estate planning, wills lawyers should be turning their minds to some of these considerations.
Krista Clendenning