By Winnie J Luk
In many situations, a couple may jointly consult with a lawyer to have mirror or reciprocal wills prepared for each of them. The mirror or reciprocal wills generally provide for all of one spouses' or partner's assets to pass to the other, and the mirror or reciprocal wills are generally similar.
In such case, the lawyer should require a joint retainer. A joint retainer is where a lawyer acts on a matter or transaction on behalf of multiple parties who would be considered joint clients such as a couple seeking the preparation of mirror or reciprocal wills.
The lawyer may advise the couple that any confidences shared with the lawyer by either spouse or partner would be held in confidence by the lawyer. The lawyer owes a duty of undivided loyalty to each spouse or partner and may not favour the interests of one over the other. However, if conflict of interest arises in the future (for eg, if one spouse or partner returns to the lawyer and request changes in his or her will that adversely affects the other), the lawyer has a professional responsibility to disclose that conflict with the other. In other words, there are no secrets among each spouse or partner and the lawyer respecting the mirror or reciprocal wills.
An exception to this may arise when the couple have permanently ended their relationship. In such case, changing her or his will to a non-mirror or non-reciprocal will might be expected. The instructions for a new will would be considered a fresh retainer and not a joint retainer where confidences shared by the single spouse or partner would be held in confidence by the lawyer.
Please note that each individual must have his or her own will. Ontario has no statutory or common law basis for a "joint will". A joint will for a couple will not be valid.
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Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. Use of this article does not establish a lawyer-client relationship.