Avoiding Negligence Claims in a Wills File - Hull on Estates #227
Listen to: Avoiding Negligence Claims in a Wills File
This week on Hull on Estates, David Smith and Julia Evans discuss avoiding negligence claims in a Wills file, an issue that is top of mind for lawyers who draft Wills. Specifically, they chat about the landscape in this area and some things that may create problems.
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David M. Smith - Click here for more information on David Smith.
Julia Evans - Click here for more information on Julia Evans.
David Smith: Hello and welcome to Hull on Estates. You are listening to episode #227 on Tuesday, October 26, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Julia Evans: Hi and welcome to another episode of Hull on Estates. I’m Julia Evans.
David Smith: And I’m David Smith.
Julia Evans: If you want to be heard on Hull on Estates you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw@hullandhull.com.
David Smith: Good afternoon Julia.
Julia Evans: Good afternoon David.
David Smith: So Julia today we thought we would podcast about this whole issue which is top of mind to lawyers who draft Wills and that’s the whole idea about avoiding negligence claims in a Wills file. And what we thought we’d talk about is the sort of landscape in this area and give some consideration to the kinds of things that can go wrong. Certainly it seems that in my estimation and what we are told by LawPro is that the scope of liability of Wills lawyers seems to be increasing. Do you have some idea of why that is?
Julia Evans: Yes I do. I think that we have an increased complexity in the law and in the human lives that it governs. People own property all around the world, in all different kinds of ways and their familial relationships are quite varied and so we can have some complexity there that we have to grapple with.
David Smith: Right and I guess the standard of care for a lawyer keeps getting higher really, given this complexity. I guess also too, just from my experience, I would assume that the increased efforts of people to jointly hold assets and come up with those kinds of estate plans can also create problems as well.
Julia Evans: Yes, I think it’s incumbent on the solicitor drawing the will to identify those issues and unpack them for clients so that they understand better what they’re up to.
David Smith: Right. Now when we talked about planning for this podcast you sort of thought that it would be helpful to discuss the Will file in stages. And so the first stage we talked about was the initial meeting with the client. And so if you’re a solicitor acting on behalf of a client who’s wanting to prepare an estate plan, we are very big on checklists, aren’t we? And what are some of the things we want to have on our checklist?
Julia Evans: Well the checklist, I think, even before we get to its content is to understand when I certainly have found it useful, and that is, in the course of one’s practice you get very familiar with the questions that you are asking day-to-day. When it’s absolutely critical, in my experience, to have a checklist is when you are in a foreign environment or circumstance. So suddenly the norms have shifted. You’re in the hospital or you’re in a nursing home or the individual is very sick in front of you, or even if you are doing a Will for a friend. It’s those times when the checklist keeps you focused.
David Smith: Right, and certainly some of the things you think about with the checklist are the kinds of things, I take it, that start with things as basic as due execution of the Will, right? Making sure you’ve got two witnesses present and making sure that the person who is making the Will knows and understands the nature of their assets and has their requisite testamentary capacity. And, of course, as estate litigators we always think of Banks and Goodfellow in that regard. What other things come to mind at the initial meeting?
Julia Evans: I think in addition to thinking about the very Will itself and the assets, it’s important to be alert to other things that are outside the document itself, like the possible presence of undue influence and to be brave to ask the tough questions of your client. How did you get here? Who did you come with? And why are you on your fourth lawyer? But the very most important thing I find at the initial meeting is to provide copious notes and actually as close in time as possible after your initial meeting, to sit down and dictate a very detailed memo. My thinking there is because when it counts, the key witness is dead and we don’t know today what factors will be critical in a determination down the road.
David Smith: Right and we know that those notes can often be critical when you get into a Will challenge situation. I would also assume that at the initial meeting certainly something I’ve seen on occasion is when there is not enough consideration given to compiling a really comprehensive list of what the person owns in terms in terms of not just assets, but jointly held assets, insurance products, art work, RRSPs. All that kind of stuff.
Julia Evans: Yes and I think it’s important also to remember that the Will is not the only testamentary instrument and the only testamentary event happening and I always explain that with our clients that one must think of the Will as part of the whole. And its risky to dabble with just one element, so that one must consider the things that are designated, things that pass by property law and contract law.
David Smith: Right, so those are the kind of things you talk about at the initial meeting. I think it’s very useful to sort of think in terms of risk avoidance when you talk about compiling the assets, satisfying yourself that the Will will survive scrutiny. And in fact, is a Will that is one that the testator wants to make. The next stage that we’ve talked about in preparing for this podcast is drafting and file building. What do you mean by that?
Julia Evans: Well file building is making sure that you have all the documents that you might think are relevant. So you’ve called in all the contracts, the corporate documents, title, promissory notes and so on and especially previous Wills or things that might be construed as Wills and look for patterns in frequency of changes, multi-lawyering and things like that. And take the time to prepare a sheet that lists the various issues that are on your mind as you are going through the drafting process.
David Smith: I guess some of these concerns are of…or some of these issues are more of a concern when you are dealing with elderly clients, is that kind of a fair statement to make?
Julia Evans: I think elderly clients bring their own special circumstances. Different people have different issues you must be sensitive to. We have capacity issues in the young as well, if they’re on medication or suffer other problems. So I think an open mind is really key.
David Smith: And in your practice typically, Julia, is it something where you look for…you look for all copies of prior Wills that a client’s made? Or do you just ask for the existing Will that they have at the time when they come in to meet with you?
Julia Evans: I try to get as many as I can for two reasons. To review it for changes and so on, but also to keep all the Wills in one place so that there isn’t as much confusion on death. They may not know that there was a subsequent Will.
David Smith: And I guess another factor there is to sort of clearly spell out whether you’ve addressed issues that appear in your list of assets. And certain assets, I suppose, might appear in prior Wills that can flag you to make sure you include them in the Will that you’re drafting.
Julia Evans: Yes or certainly ask what happened to them.
David Smith: Right. What about client approval and execution? What’s a good practice point with respect to execution of a Will?
Julia Evans: The number one thing I think, or one of the number one things is never send it out to the client to be executed somewhere else, then you’ve lost control of the process and you are not really sure whether you’ve really confirmed that the client understands what they’re doing, what they’re signing. It also is a great opportunity to review that list of issues that you’ve been compiling during the drafting process and confirm that you’ve raised or at least answered as many as you can there.
David Smith: Fair enough. And certainly it would seem to me that one of the duties that you should assume if you’re drafting a Will for someone, execution shouldn’t be seen as a separate part of the piece. It’s really a seamless part of the whole, isn’t it, in the sense that you draft, you take the instructions, you draft the Will, you get the instructions. But the actual execution of the Will is such a critical part of the whole piece because due execution is…I’ve always taken the view that it’s deceptively simple. It sounds easy enough to sign a Will in the presence of two witnesses, but you know there’s been more than one occasion where I’ve seen Wills that have not been duly executed, even when they’ve been drawn in lawyers’ offices. And I think it’s sometimes a process that perhaps we can be too casual about on occasion.
Julia Evans: I think so, and indeed one good practice tip I found was to always do it in the same order. Always, especially if you have a couple, you have it…you know, it’s always the woman first, for example, and then who is the first witness and who is the second every single time. And my thinking there is that if you’re ever asked later on how did the execution go, you can say well it’s always the same order because I’ve always done it so. And furthermore the same with the review. It’s always in the same order. You go over the Will the very same way for every single client and including their issue sheet which would, of course, be in their file.
David Smith: Well that’s…you know, that’s a really good point if someone can say, because I mean, if you assume the worst case scenario where a lawyer is examining you because there’s a challenge made to a Will and the issue of due execution comes up, it’s certainly easy to say yes I can rely on my notes and by the way, this is how I always do it. So I think that’s a good bit of advice. Lets in the limited time we have left talk about reporting. What are you responsible for?
Julia Evans: I think that’s discussed all along from the very beginning when you first meet with your client right through to the execution phase. And in the reporting letter, you set out any of the issues that have arisen and what you’re suggesting to do about it and restrict your responsibility to areas where you’re not comfortable, you’re out of your practice area. For example, if you’re not qualified or comfortable giving international tax advice and you’ve advised the client to go and obtain that, then you’d be sure to put that in your reporting letter. The other element I think in the report that’s important is to remind the client of the dynamic nature of a Will and that set out some of the triggering events that might get them to come back and at least reconsider or review their Will with you.
David Smith: Right. So of course we’ve only touched on some good practices in the limited time that we’ve got, but it’s been very useful discussing this, Julia and I think it’s a good refresher for everyone who draws Wills and for all of our listeners to think about various issues to be considered when you’re meeting with a client and engaging in the estate planning process. So thanks a lot to all of our listeners for listening and thanks for joining me today, Julia.
Julia Evans: It was a pleasure, David. I look forward to podcasting with you again soon.
David Smith: And we look forward again to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw@hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you’ve enjoyed the show and again I’m David Smith.
Julia Evans: And I’m Julia Evans. Until next week, so long.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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