League and Williams Lawyers

Tag: will drafting

  • Solicitor’s Negligence: Suing the Will-Drafting Lawyer

    Solicitor’s Negligence: Suing the Will-Drafting Lawyer

    Sometimes, due to the drafting lawyer’s negligence, a will may not reflect the testator’s requests, unbeknownst to them. Perhaps the lawyer failed to carefully review the directions given to them by the testator, or improperly applied the law, making an error which causes the will to be invalid. In either case, the beneficiaries of the will often discover these mistakes themselves and must find a remedy. Usually, these types of errors cause the beneficiaries of the will to sufferEven though the beneficiaries are not directly clients of the will-drafting lawyer, do they have a valid legal claim? The answer is commonly yes; beneficiaries can sue solicitors for negligence, depending on the facts of the case.

    A Lawyer’s Standard of Care

    The Law Society of BC regulates the legal profession to protect the general public of BC

    As described in the case of the Central Trust Co. v. Rafuse (1986), “a solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken.” When negligence claims arise, the question that the courts must ask is whether a reasonably competent lawyer in the same situation would have made the same mistake or not. It is not a question of the drafting lawyer being perfect in their conduct, rather just that they were acting reasonably.

    The Law Society of British Columbia enforces a high standard of care for all BC lawyers handling client cases. They provide a checklist outlining tasks that will-drafting lawyers must adhere to. Some of the common errors made by will-drafting lawyers which can result in a negligence lawsuit are:

    • Not writing detailed notes on the client,
    • Not using proper witnesses for the will,
    • Not interviewing the client thoroughly enough,
    • Not suspecting undue influence,
    • Missing limitation dates on taking certain actions, or
    • Forgetting to include a certain provision that the client requested.

    Any one of these mistakes could alter the main principles or function of a will. When mistakes occur, beneficiaries can face significant financial loss.

    Beneficiaries Suing the Lawyer

    Until recently, the courts took the position that lawyers only owed a standard of care to their clients (in this case, the testator). Lawyers did not owe a standard of care to the beneficiaries of the will. Most of the time, the client of a negligent lawyer has no recourse as they have passed away before the negligence was discovered. This made the standard impractical. Now, a beneficiary is able to take legal action against the will-drafting lawyer – solicitors owe a duty of care to the third parties affected, including beneficiaries of a will.

    The case of Whittingham v. Crease & Company (1978) examines a scenario where a will-drafting lawyer is held accountable for their negligence. In this case, the solicitor did not follow the proper procedures for witnessing a will in British Columbia. The witnesses were unsuitable as they had an interest in the will. One of the witnesses was married to a beneficiary. The will was ruled invalid due to this error and the testator died intestate (without a valid will).

    Due to intestate succession laws, the plaintiff (a beneficiary) received less of the estate than he would have if the will had been valid. Believing he had suffered a loss because of the lawyer’s incompetence, the beneficiary sued the lawyer for negligence.

    The Court’s Decision

    The solicitor should have understood their responsibility to provide accurate information, because the client sought them out for professional advice. The courts ruled that the solicitor in this case committed the following acts of negligence:

    1. Failing to take care to ensure that in the matter of the witnessing of the said will the provisions of s. 12(1) of the Wills Act were not contravened;
    2. Failing to take any reasonable steps at all to remedy the said failure;
    3. Requesting the wife of the plaintiff to act as a witness to the execution of the said will;
    4. Misstating to the plaintiff that it was safe for his wife to act as a witness to the execution of the said will.

    Due to the acts of negligence, the court ordered the lawyer to compensate for the damages suffered by the beneficiary. Though this is an older case, it demonstrates how a clear act of incompetence by a will-drafting lawyer will hold the lawyer accountable if a beneficiary suffers as a result.

    Contact an experienced estate lawyer today if a solicitor’s mistake has wronged you as a beneficiary. We can support you in holding the will-drafting lawyer accountable for their negligent acts.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Estate Litigation: Drafting Lawyer’s Disclosure

    Estate Litigation: Drafting Lawyer’s Disclosure

    Sometimes, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving litigation. However, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to. They owe this duty to the testator even after they have passed away. According to chapter 3 of the Code of Professional Conduct for British Columbia (CPC),

    “A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

    Lawyers and Confidentiality Release

    There are few circumstances where a lawyer is able or required to release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on their client’s affairs, they can release such information when:

    1. Expressly or implicitly authorized by the client;
    2. Required by law or a court to do so;
    3. Required to deliver the information to the Law Society, or
    4. Otherwise permitted by the Code.
    A lawyer always owes a duty of confidentiality to all of their clients.

    Basically, a lawyer can only release all their information on a client if authorized by the client or the courts. People are sometimes confused, wondering why this information is confidential. However, it’s important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.

    Client/Executor Authorization

    Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t authorize the release of the information in the lawyer’s file. The executor of the will is able to authorize the release of information. Executors are appointed to administer the estate, and must act in the best interests of the beneficiaries. In order for the executor to waive confidentiality, they must sign off, agreeing for the lawyer’s file to be released. The executor has the option to allow this or not.

    When the will-writer is still alive, they can allow the will drafting lawyer to release information if they choose. The executor will not be given this ability until after the testator has deceased.

    Court Authorization

    In some cases, the courts have to order the authorization for the lawyer to release the will drafting information. An example of when this could arise in an estate litigation case is when there is question of the validity of a will. Since the validity is in question, the executor of the will might not even be a valid executor and hence cannot authorize the release. Other cases where this can arise include when the courts believe that the release of the file is essential to a case, however, the executor is refusing to authorize the release. The courts are given the final say and can exercise this power when it appears to be necessary to resolve a case.

    If you believe that the release of a drafting lawyer’s file could help with your estate litigation case, contact an experienced estate lawyer today. We can ensure that you’re properly represented and get the information you’re entitled to.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Drafting a Will: The Basics

    Drafting a Will: The Basics

    Before worrying about technical requirements of a valid will, it’s important that testators understand the basics. Will writing goes well beyond simply distributing assets to different loved ones, and testators should understand this. Some of the most important tasks of a testator include: appointing an executor, appointing legal guardians and representatives, choosing beneficiaries and choosing how to distribute the estate.

    Appoint an Executor

    Your executor is responsible for its administration of your estate after you pass away. Some of the tasks an executor is responsible with include paying outstanding debts, selling estate assets, and distributing gifts to beneficiaries.

    The appointed executor(s) are usually entitled to receive executor’s fees as compensation for their work as executor.

    Depending on the size and complexity of your estate, the job of the executor can be extensive. We recommend that you choose an executor who you can trust and is willing and able to complete the job. The executor can be a beneficiary in the will. Sometimes, people will name all their children as joint executors of their will. This way, each child has a part in the administration, and it helps to distribute the work load. Having multiple executors can reduce the risk of fraudulent behaviour, as each executor has to approve of the decisions made on behalf of the estate. However, it may give rise to other problems in the administration process if the joint-executors disagree on certain issues.

    Appoint a Guardian

    If you have children under the age of 19, it’s important to appoint someone who will be their legal guardian. If both of the child’s parents pass away, a guardian is someone who will be the caretaker for your minor children. When a guardian is not named in the will, the family courts have to appoint someone. To have full control, it’s always best to include an appointed guardian in your will.

    When appointing a guardian, it’s best to speak with family members to see who would be the best fit for your children. Depending on their age, it can be a huge responsibility to undertake guardianship and the appointed guardian must be willing. Typically, an appointed guardian is one of the testator’s siblings or another close family member.

    Plan For Future Incapacity

    Will-writers should appoint a power of attorney to handle their financial and legal matters should they become incapable. The circumstances under which the person can make decisions is dictated by the power of attorney agreement. The most common form is the enduring power of attorney. This is when you appoint an attorney to make decisions for you only if you become incapable in the future. The appointed enduring attorney only has the authority while you’re incapable of making the decision on your own behalf.

    A representation agreement is very similar to a power of attorney agreement. However, representatives are usually tasked with making health and personal care decisions. It’s often a good idea to appoint a representative and a power of attorney as part of one’s estate plan. Your estate plan can also include directions and for the representative to follow, ensuring they understand your wishes.

    If your estate plan doesn’t appoint a power of attorney or representative, a committee must be appointed if you become incapable in the future. Unlike the power of attorney or representation agreement where the parties simply create a contract, a committee must apply to the courts to be given authority. Since this is a court process, it will often be lengthy. Also, the incapable person would have little say in who applies and becomes their committee acting on their behalf.

    Pick Beneficiaries

    Beneficiaries are the people who you are going to give gifts from your estate to. Beneficiaries in a valid will can be anyone; inheritance is not limited only to family members of the deceased. People can also select charities and organizations as beneficiaries in their will. While testators have full control to choose how to distribute their estate, spouses and children cannot be unfairly disinherited in BC. Testators must make adequate provisions for the proper maintenance and support of their spouse and children in their will. In some cases, parents can have valid reasons for disinheriting a child which allow the testator to override this provision.

    Some testators choose to only name their children and spouse as beneficiaries, while some testators name close friends, charities and relatives as beneficiaries. It’s up to you as the testator to decide this on your own, without being unduly influenced by anyone.

    Distribute the Estate

    Once you know who you want to give your estate to, you must decide how much of and what to give each beneficiary. You can also decide how you want the estate assets distributed (i.e. to distribute your physical assets as they are, or sell them and distribute the funds). When gifting a large asset like a house, it can bring along many responsibilities and expenses for the beneficiary. It’s a good idea to work with the beneficiary and understand their position on receiving the gift.

    Sometimes it’s easiest to sell all the estate assets and give each beneficiary a specific percentage of the estate residue. This isn’t always the case, as families often have assets that they want to pass down for generations to come. In the end, it’s at the discretion of the testator how they choose to distribute their estate.

    The Formalities of a Valid Will

    By law, you do not need a lawyer to draft a valid will in BC – you can make your own. However, we strongly recommend testators get advice from an experienced will-drafting lawyer. There are various different formalities to consider when writing a valid will. In addition, there are many different tips and tricks to reduce any risks of confusion when people are reading your will. As an example, the wording in a simple provision can have various different legal meanings which can interfere with the administration of the estate in the way which you intended.

    When a testator is giving a gift to “their children,” it may seem obvious nd clear who is to receive the gift. However, does “their children” only include birth children? This could include their stepchildren as well. This is only one of hundreds of different mistakes and misunderstandings that can arise from a poorly drafted will.

    Even though there are many do-it-yourself kits for wills online, we encourage everyone to at least hear the advice of an estate lawyer before finalizing their will. Fixing any discrepancies or ambiguities before it’s too late can save your estate and your family significant amounts of time and money in legal fees. If you need help drafting your will, contact an experienced estate lawyer today. We can ensure that your will is written properly and won’t cause any problems for your loved ones after you have passed away.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.