Can there be a Solicitor’s Lien on an Original Will?
Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will be produced by the deceased’s second wife to the son of the deceased, even if the will was not going to be probated and even if there was no action commenced.
But, can the former solicitor for an estate assert a solicitor’s lien for payment of legal fees over the original of a deceased’s will, or is the will exempt from lien?
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the application dealt with this very narrow issue and Justice D. Brown, as he then was, decided:
“I think it is appropriate to exercise my discretion under section 9(1) of the Estates Act to require Mr. Kligerman to deliver up the will to Ms. Hegedus so that the administration of the estate may proceed.
Mr. Kligerman need not do so until Ms. Hegedus consents to a charge against the estate of Gizella Szabo in the amount of Mr. Kligerman’s account dated January 8, 2004, together with accrued interest.
Until Ms. Hegedus gives such consent, Mr. Kligerman may maintain his lien over the original will.”
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