Legal Blog

Will Duties

How often will lawyers sit for ages on will instructions? Beware! If a lawyer is negligent in drafting a will, or in not drafting a will after having received instructions, the lawyer can be held liable to the beneficiaries who did not receive their due as a result of that negligence. There is liability even though there is no contract between the lawyer and the beneficiaries. This rule of law was enunciated in England in White v. Jones (1995), 3 All E.R. 691 (H.L.) and was followed in Canada in Hickson v. Wilhelm, a 1997 unreported decision of the Saskatchewan Queens Bench.

Learn the Facts

     In 1976, the testator, a farmer, incorporated his own corporation for tax purposes. His accountant and his lawyer (Lawyer #1) were very much involved with the transfer of the testator’s assets, including his farmlands, to the corporation. An agreement was executed transferring the lands and all tax returns and statements thereafter were prepared on the basis that the corporation was the beneficial owner of the lands. Legal title to the lands remained with the testator for land transfer tax purposes.

     In 1984, Lawyer #1 was appointed to the Bench and another lawyer of the same firm (Lawyer #2) took responsibility to service the legal needs of the testator and the corporation. Lawyer #2 supervised the drafting of two years of corporate annual resolutions for the corporation but took no personal interest in the corporation or the testator.

     In 1986, the testator gave instructions to Lawyer #2 to prepare his will. The will was drafted and executed, in accordance with the testator’s instruction, leaving various parcels of the lands to various beneficiaries. The testator died in 1988.

Surprise

     The executors of the will quickly realised that they had a problem. The testator did not beneficially own the lands he had attempted to devise in his will; his corporation did. Accordingly, the specific legatees of the lands got nothing and the residual beneficiaries received the lands. The specific legatees were not amused and sued Lawyer #2.

Read Em & Weep

The judge noted that there was expert evidence indicating that, given the substantial estate and the tax considerations involved, there should have been a further inquiry of the testator’s accountant. Of course, the accountant testified that had he been contacted, he would have identified the involvement of the corporation and the need for a different approach to the will.

The judge stated:

“To suggest that it is a sufficient discharge of a solicitor’s duty to a testator in circumstances such as these to simply inquire of him what he wishes and then to record and thereafter prepare the will without anything further is to relegate a solicitor and his obligations comparable to that of a parts counterman or order taker. The public is entitled to expect more from the legal profession.”

The judge then held Lawyer #2 liable for making no further inquiries that would have tipped him off that he was not effectively dealing with the testator’s intentions. What is interesting is that there was no mention of the knowledge of Lawyer #1 being attributed to Lawyer #2.

Moral

Talk to the persons giving you instruction. Ascertain all of their assets. Inquire further if the assets are not run-of the-mill. Realise that not every will is a $250 special.