When Is a Lawyer Negligent in the Drafting of a Will?

A recent Alberta Court decision reminds us of the pitfalls for a lawyer in drafting a will.

The lawyer was asked by a demanding client to prepare a will for execution the next day.  The will was to provide that certain property be gifted to the client’s brother.  Unfortunately, the client did not hold title to the property.  It was held by one of his companies.  As a result, following the death of the client, the gift failed.  The issue for the Court was whether the lawyer was negligent in the preparation of the will by failing to determine the ownership status of the property or whether he was entitled to rely on his client’s information that he owned the property.

The lawyer was found to have been negligent and liable to the brother with damages assessed at the value of the property at the date of death of the testator.  The Court reiterated the common law that a lawyer owes a duty of care to a beneficiary under a will prepared by the lawyer.  Basically, that duty is to prepare the will with the skill and care of a prudent lawyer.

At issue was whether the lawyer had a duty to go beyond the information provided by his client to determine whether the client was in a position to make the gift intended.  The Court found that while a solicitor is entitled to rely on the instructions provided by a client, there is an obligation to ensure that the instructions are complete and sufficiently accurate to achieve the desired result.  This includes a duty to make necessary inquiries in order for the lawyer to satisfy himself or herself that the wishes of the testator will be honoured.  In the circumstances of this case, the Court found that the lawyer had an obligation, even under significant time restraints, to make appropriate searches and inquiries concerning title to the property.  The Court took into consideration the long-standing relationship between the lawyer and the client and the admission by the lawyer that the client was not a “details” person and relied on the lawyer in past dealings to ensure that his wishes were complied with legally.


5 Comments to “When Is a Lawyer Negligent in the Drafting of a Will?”

  1. This is not a surprising result, but as a lawyer I find it frustrating. Clients have no idea how much responsibility we carry when we prepare what they think of as a “fill in the blanks” document. Having read this, I will never prepare a will in one day for a client. They can take the business elsewhere if they won’t respect my need for time to do the job right. I expect many other lawyers will also stop doing rush jobs for clients because the end result is too dangerous.

  2. As a Certified Probate Liquidators, we have ran into these kind of situations way too often. The first thing we do is is check for ourselves that the paperwork can be verified that they have the right to sell regardless of who prepared it. In addition to this, we check for other assets online here and where they lived before. Often, we find a lot!

    Many times we have been asked by educated people and twice by attorneys if it is OK with us if they sign for someone else without a power of attorney on real estate and businesses. Therefore, nothing surprises us.

    In closing, I agree that you should take your time and get the correct legal paperwork before you do anything for a client.

  3. Thanks for your insightful comments!

  4. Good luck.

    Client’s will not pay for the time/effort required to do the kind of job the court has mandated in this poorly decided case. If you can’t rely on a client to tell you something as basic as “I own that property” then we, as lawyers are doomed. You can’t practice law if you had to verify that every single piece of information your client tells you is fact. Just impossible.

    Moronic decision by the court. Alberta? Hope it stays in Canada.

  5. I agree with Lynne and J.J. It is disheartening that the dilligence obligations imposed on those drafting wills are increasing at the same time clients’ patience and willingness to pay for the service seems to be decreasing. Rural practitioners bear the brunt of it.

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