Recently, I had the opportunity to attend the OBA’s CPD program on Solicitor’s Negligence Claims: Strategies for Effective Advocacy, which provided a helpful refresher for estate practitioners specifically.
At the outset of the program, attendees were reminded that in an estate planning context, there are two types of beneficiaries – disappointed beneficiaries (i.e. those the testator had intended to benefit, and who did not, but for the solicitor’s negligence) and previous beneficiaries (i.e. those that benefit in the testator’s previous Will(s), but not the Last Will).
The jurisprudence has differentiated between these two types of beneficiaries, finding that a solicitor owes a duty of care to the former, but not the latter. The “disappointed beneficiary” remedy was essentially created to address a gap in the law, where the Courts identified a group of claimants who would not otherwise have access to recourse if the Will should fail, or if the solicitor failed to include them in the Will at all. On the contrary, a previous beneficiary has the ability to access relief through a Will Challenge. In this way, a disappointed beneficiary’s interests are seen to be aligned with the Testator’s, where the previous beneficiaries’ interests are not.
The program also reminds solicitors that in solicitor’s negligence claims, the standard of care is that of the reasonably competent solicitor, a standard that does not require perfection. The main obligation of the solicitor, in the estate planning context, is to prepare a valid Will that gives effect to the Testator’s wishes.
In the context of negligence claims – even if a duty of care is found to be owed by the solicitor, and that the solicitor breached the standard of care, it must be clear that the damages suffered are linked to the negligence of the solicitor.
The program provided a helpful summary of common omissions that can give rise to claims:
- Timing (i.e. failing to execute the Will in a timely manner);
- Accuracy (i.e. technical errors, incorrect dispositions, failure to include a residue clause);
- Communication;
- Privacy;
- Failing to document instructions;
- Failing to advise of risks regarding pre-death dispositions; and
- Failing to probe for capacity and undue influence concerns.
In conclusion, the program (though not representing LawPRO), provided helpful reminders that solicitors are to report alleged, actual, or possible errors that could potentially give rise to claims to LawPRO, and, to report any potential claims sooner rather than later to avoid coverage concerns.
To learn more about solicitor’s negligence claims, check out our past blogs:
When might a solicitor be negligent in preparing a Will?
Solicitor’s negligence claims: are non-clients owed a duty of care?
Thanks for reading!