In a recent eState Planner webinar on November 28, 2024, Raymond LeClair, Vice President of Public Affairs at LawPRO, joined Ian Hull to discuss the upward trend of estate-related claims and share essential prevention strategies.
Key Causes of Claims
Claims typically emerge 2-3 years after work completion, predominantly affecting lawyers with 6-25 years of practice experience. While claims occur across all geographic regions proportional to lawyer population, the wills and estates sector shows an upward trend, correlating with increasing generational wealth transfers.
Communication issues remain the primary cause of claims, but a significant shift has occurred in secondary factors. Inadequate investigation has risen to become the second most common cause, surpassing time management issues. Inadequate investigation involves lawyers not asking enough questions, not asking the right questions, or not doing sufficient due diligence.
Essential Prevention Strategies
Raymond and Ian discussed several potential ways to prevent claims, including:
- Implement the “50/10 Rule”: 50-minute meetings, 10 minutes for documentation;
- Meet with testators privately, especially for virtual meetings where it can be more difficult to determine who else is in the room;
- Verify beneficiaries, assets, and titles thoroughly, and document advice where testators refuse title searches; and
- Document all exclusions and reduced inheritances.
During the discussion, Ian Hull raised a question about the issues associated with taking video recordings during client meetings. Mr. LeClair responded by emphasizing the importance of having clear file retention policies for video recordings, noting that while videos could provide strong evidence of proper process, they could also be problematic if deleted without documented policies or if they capture mistakes. He stressed that lawyers need to carefully consider how they will store, retrieve, and ultimately dispose of video recordings according to a consistent policy to avoid potential allegations of improper destruction if videos are later requested during litigation.
Available Resources
There are many resources available to assist lawyers in avoiding claims, including PracticePRO and the Law Society of Ontario’s new Guide to Navigating Client Capacity Concerns, which we have recently blogged about. As well, eState Planner offers free Estate Planning Webinars to keep you up to date on the latest developments.
The webinar’s core message resonated clearly: claims can affect any lawyer, regardless of experience or location. Success in preventing claims lies in maintaining detailed documentation, following consistent procedures, and staying current with best practices. By implementing these strategies and utilizing available resources, lawyers can better protect themselves while providing superior service to their clients.
Thanks for reading,