Practice Considerations: How to Avoid Solicitor Negligence

Negligence claims against estate practitioners have steadily increased over the last decade. According to LawPro, in 2019 alone, there was an average of 221 claims against will drafting lawyers.^[1] Negligence claims can easily be avoided by following simple best practice considerations.

Solicitors preparing wills need to understand that they owe a duty of care to their client. In Hall v Bennett Estate, it is well settled that a “solicitor who undertakes to prepare a will has the duty to use reasonable skill, care and competence in carrying out the testator’s intention.” ^[2] This also includes the obligation to ensure that your client has the capacity to make a will. Solicitors should not have any doubt as to their client’s capacity. Drafting lawyers should be actively listening to their client’s instructions and uncovering what their client’s intentions, needs and wants, truly are. It is simply not enough to fill in the blanks of a will precedent.

Some best practice considerations that will help you in your estate planning practice, include:

Understand Your Client

• What are your client’s familial circumstances?
• Is your client well supported by more than one family member? Relatedly, are there conflicts within your client’s family?
• Is your client independent? Can they make autonomous decisions on their personal care and finances or do they consult with a family member or friend?
• Has your client had any recent medical procedures or will they be undergoing a significant procedure soon?
• Are there any linguistic barriers that could limit your client’s ability to understand any aspect of the estate planning process?
• Does your client hold property jointly with another? If so, have you reviewed the relevant records?

Communicate With Your Client

• Do you have a clear retainer agreement?
• Have you confirmed your client’s instructions in writing?
• Is there any urgency to the matter? For example, your client may be undergoing a medical procedure and require a power of attorney for personal care drafted

Know the Law

• Are you aware of key provisions in the Income Tax Act, Succession Law Reform Act or the Family Law Act, that may apply to your client’s circumstances?
• Are you aware of any new developments in the law?
• If the matter is beyond your scope, have you thought about consulting with a senior practitioner? Or, perhaps referring your client to someone more knowledgeable?

While these are just a few considerations, it is helpful to keep these in mind to ensure you avoid unnecessary and unwanted litigation.