Should couples prepare their Wills together?

When a couple works together with one lawyer to prepare their Will, they sign a “joint representation” agreement (often within the terms of their overall engagement agreement). “Joint representation” refers to a situation where a lawyer acts for more than one client on the same matter.

Estate planning is an area of law where joint representation is common. In this context, the joint retainer typically includes the preparation of Wills, Enduring Powers of Attorney, and Personal Directives for each person, based on shared instructions.

As a starting point, lawyers are not able to act for more than one client in the same matter, unless specific criteria (set out in the Law Society of Alberta Code of Conduct) are met. A lawyer may represent more than one party only if doing so is clearly in the best interests of both clients.*

There are often efficiencies and cost savings when a couple works with the same lawyer on their Wills - but it is not the right fit for everyone. Whether it makes sense for you depends on your personal circumstances.

Some questions to consider:

(1) Would there actually be efficiency and cost savings?

Start by looking at whether your plans align. Do you have similar goals? Are you gifting everything to each other first and then agreeing on the distribution after the second death?

If the answer to these questions is “yes”, there will likely be cost savings in working together with the same lawyer to prepare both sets of documents (vs. preparing documents separately). If the documents are going to differ significantly, the lawyer needs to draft completely separate documents. In those cases, a joint retainer may not reduce drafting time. However, it may still save you time overall. Many couples still prefer to go through the process together for convenience and peace of mind, even when their documents will not be identical.

(2) Does joint representation make sense for you? Or would separate advice be more appropriate?

In some cases, personalized advice may be the better path. For example, in blended families, where there may be different considerations for children from prior relationships, individualized advice can be valuable. That said, some blended families may prioritize the benefit of having all discussions together and ensuring both Wills work together to achieve mutual goals.

It is important to know that when a lawyer represents both of you, nothing shared by one of you can be kept confidential from the other. If there is information you would want to tell your lawyer privately, a joint retainer is not appropriate.

Even if joint representation seems like a good fit at the outset, a lawyer may be required to withdraw from acting for both clients if a conflict arises later. For example, if your goals diverge during the process and cannot be reconciled, the lawyer would likely need to cease acting for both of you.

(3) What if your plans change later?

Your estate plan can (and should) evolve as your life changes. We are always happy to help clients revisit and revise their estate plans as things change.

However, if your documents were prepared under a joint retainer, and you later want to make changes without informing your partner or spouse, you would need to hire a different lawyer to do so. The lawyer who acted for you jointly would likely be unable to assist due to conflict rules.

Other personal and legal considerations may apply depending on your situation. If you are unsure, it is a good idea to speak with a lawyer directly. Also, if you decide to proceed with joint representation, be sure to read your engagement letter carefully - it should explain how the joint retainer works with your specific lawyer/firm.

If you would like to learn more, or discuss your estate planning needs, you are welcome to book a free initial consultation with us or reach out to us at info@modernwills.com.

FAQs

Can we still work with the same lawyer if we want different executors?
Likely yes. If your instructions are still aligned in most other ways and you are both comfortable discussing and agreeing on the differences, joint representation may still be appropriate. We can walk through those details together to confirm. Often, we explain the benefits of agreeing on the same executor - but you may still choose different people.

What if we do not agree on everything?
Your documents do not have to be identical. It is very common to have a few different gifts in Wills, and even more common to have different health care preferences in Personal Directives. Even disagreements do not automatically rule out joint representation, but if the disagreements become significant or create a conflict, your lawyer may no longer be able to act for both of you.

Can we change from a joint retainer to individual representation later?
Not with the same lawyer. If you begin with a joint retainer and then decide to proceed separately, at least one person would need to hire a new lawyer - and depending on the situation, both may need to do so. Most lawyers agree that conflict rules prevent one lawyer from acting for a both persons in a couple on individual retainers, even with consent.

Can we change from individual representation to a joint retainer later?
Possibly. If a lawyer has previously prepared documents for one individual, and that person later returns with their partner to prepare new documents together, the same lawyer may be able to assist. However, if a lawyer has represented one spouse or partner individually, and the other person later reaches out for their own separate representation, the lawyer will likely have to decline due to conflict rules.

Is a “joint Will” the same as joint representation?
No. A “joint Will” is a rare legal document that we do not recommend. It involves signing one shared document and agreeing not to revoke it without the other person’s consent. Joint representation, by contrast, means working with the same lawyer to prepare separate Wills, which are often - but not always - mirrored versions of each other (i.e. “mirror Wills”).

This post provides general legal information and is not legal advice. It does not take your specific circumstances into account. Do not rely on it as a substitute for personalized legal advice. The information is current as of the date of publishing but will not be updated. This post is revised from an earlier version originally posted December 7, 2021.

*See LSA Code of Conduct, Rule 3.1-5 Commentary (pages 36 - 39) for more information.