On November 24, 2022, Hull & Hull LLP and Whaley Estate Litigation Partners held a webinar to discuss tips, traps and tools to help identify and avoid errors and omissions that could result in will challenge litigation or negligence claims. 

The following notes summarize the main takeaways for drafting solicitors looking to safeguard and enhance their practice. Cases and statutes referenced in the webinar are hyperlinked to their corresponding legal principles below. To watch the entire session, click here.

Recent Updates to Wills and Estates Law Across Canada

• 2021 decisions in Ontario, Nova Scotia and Alberta: the doctrine of resulting trust does not apply to beneficiary designations; 
• B.C. now authorizes probating electronic wills;
• P.E.I. enacted legislation defining digital assets and permitting fiduciaries to access the digital assets of an account holder;
• Section 21(1) of the recently amended Succession Law Reform Act holds that Ontario is now a substantial compliance jurisdiction.

Standard of Care of a Drafting Solicitor 

• “Reasonable care, skill and knowledge to the performance of the professional service”;
• Reasonably competent lawyer, practicing in the same community at the time in question; and
• Not perfection.

Discharging the Duty of Care 

• Solicitor must satisfy the will is valid; and
• Solicitor owes duty of care to intended beneficiaries of a will.

A Lawyer’s Obligations  

• Skillful and careful;
• Advise clients on all relevant matters;
• Protect interests; 
• Carry out instructions;
• Consult; and
• Keep client informed.

Testamentary Capacity

• Testamentary capacity is decision, time and situation-specific; and
• Lawyer’s duty to assess capacity is especially significant if client is elderly, infirm, dependant, or if instructions vary substantially from previous documents.

Undue Influence and Fraud

• Such influence on a testator that his/her decisions are not wholly independent;
• Lawyers should be:
  
  • diligent and alive to indicia;
  • asking the right questions;
  • recording interactions; and 
  • noting any suspicious circumstances.

Acting Reasonably in Preparing Wills

• 6 factors to consider in determining whether a lawyer acted reasonably in preparing a Will:
  

1. terms of retainer;
2. whether any delay caused by client;
3. importance of the will to the testator;
4. the complexity of the job;
5. any circumstances indicating risk of death/incapacity; and
6. whether there was a reasonable ordering of the lawyer’s priorities.

Drafting Issues That May Arise

• Estate planning with husband and wife:
  
  • know when the retainer is at an end;
  • record, report, advise; and
  • recognize conflicts and fiduciary duties.
    
• No-contest clauses and the in terrorem doctrine:
  
  • “No-contest clause”: a condition imposed by the will-maker which asserts that if a beneficiary challenges the will, they cannot receive their gift; and
  • “In terrorem doctrine: a court may invalidate a no-contest clause where the condition is a threat with no consequence.

Two main categories of wills and estates-related LawPRO claims:

1. inadequate investigation; and 
2. communication issues.

Risk Management Tips

• Use checklists when assessing capacity and undue influence;
• Ask the client probing questions: ask a lot and send a reporting letter of what was discussed; and
• Avoid acting for family members or friends.

Thank you for reading and have a nice day!

Ian Hull and James Macfarlane