Tag: legal fees

07 Oct

Can a Lawyer claim a Lien after Releasing an Original Will?

James Jacuta Litigation, Wills Tags: , , 0 Comments

In Lipiec v. Lipiec, 2021 ONSC 6292 (CanLII) the court ordered on September 22, 2021, that the original will be produced by the deceased’s second wife to the son of the deceased.

In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the former solicitor for an estate was allowed to assert a solicitor’s lien over the original of a deceased’s will for payment of legal fees.

In Polten & Associates v Resch, 2015 ONSC 3930 (CanLII) the court ruled on the claim for a solicitor’s lien after the original will had been released, and found against the claim by the lawyer as follows:

“It is the position of Mr. Polten that his law firm has a solicitor’s lien over the Estate assets, “including those assets which appear to have been deliberately excluded from Resch’s calculation of the undistributed Estate proceeds.” And further that, the Polten law firm “did not withhold the Will through the exertion of a solicitor’s lien” and it should now be paid its outstanding fees “for reasons including the lien it could have then claimed, and has now in fact claimed as part of the process leading to this motion….” .

Mr. Justice J.B. Shaughnessy ruled, “I reject Mr. Polten’s argument that he has a solicitor’s lien and that this constitutes a financial interest in the estate.”

In summary, it appears that a lawyer can assert a solicitor’s lien on an original will for unpaid legal fees and can do so by retaining possession of the original will until the matter is dealt with by the court or the claim is otherwise resolved.

Thanks for reading!

James Jacuta

05 Oct

Can there be a Solicitor’s Lien on an Original Will?

James Jacuta Litigation, Wills Tags: , , , 0 Comments

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.”

Thanks for reading!

James Jacuta

27 Jul

Legal Fees as a Settlement Consideration

Nick Esterbauer In the News, Litigation Tags: , , , , , , , , , , , 0 Comments

This weekend marks the end of the 105th Tour de France.  This year’s race has been full of controversies, first as a result of allegations of doping by pre-race favourite and four-time winner Chris Froome (and a related threatened cyclist strike) and subsequently ranging from disqualification of one cyclist for punching another to the inadvertent tear-gassing of cyclists by French police.

This spring, news surfaced regarding a settlement negotiated in respect of the claims against controversial cycling figure Lance Armstrong.  Armstrong’s former teammate, Floyd Landis, had commenced proceedings against him in 2010 under the False Claims Act.  The United States government became involved in the fraud proceedings in 2013 after Armstrong admitted to using performance-enhancing drugs after years of public denial.

The litigation commenced by Landis was settled earlier this year.  Terms of settlement were reported to involve a payment by Armstrong of $5 million (of the $100 million claimed against him), as well as a payment to Landis of $1.65 million in legal fees.  Accordingly, Landis’ one-quarter share in the settlement payment is less than what he will receive in legal fees.

It is not unusual in our work to see settlement terms involving the payment of one or more party’s legal fees as part of or in addition to a settlement payment.  Especially where litigation spans the better part of a decade, the legal fees incurred can rival or exceed the quantum of the settlement payment itself and may form an important part of negotiations.

Have a great weekend,

Nick Esterbauer

19 Jun

Legal fees for probate – Playing it fair

Ian Hull Joint Accounts, Trustees, Wills Tags: , , , , 0 Comments

Not every estate requires probate, but it’s a near essential for many. And while lawyers retained to undertake the probate process on behalf of estate trustees are entitled to compensation, it must be fair and reasonable in the circumstances.

The main reason to seek probate is to gain the ability to deal with certain kinds of assets or certain kinds of third parties. In particular, if the estate includes real estate that is not held in joint tenancy, probate is usually necessary to transfer title to the property.

There can be a lot involved. The probate process involves a court application and the verification and valuation of estate assets, amongst other things. While it can be a straightforward process for many estates, it can be a complex undertaking in others. For example, the deceased may have owned property that needs an appraisal, or had multiple bank and investment accounts, or owned assets in foreign jurisdictions.

Legal fees will vary

For this reason, it’s never a “one size fits all” approach when determining a fair and reasonable legal fee for the probate process. Because it’s not always possible at the beginning of a matter to determine how long it’s going to take to do the job, many lawyers charge by the hour. However, others charge from 1.5% to 2% of the estate value to obtain probate. In Ontario, that can equal or exceed the probate fee (estate administration tax). While these amounts might also include fees for some of the estate trustee’s work, they don’t always. The courts have taken notice, and are requiring lawyers to have separate files: one for legal work and one for executor’s work. You can find an excellent discussion of these points and others relating to probate costs here: http://www.makeawillcanada.ca/truth-about-probate/.

Avoiding disagreements with beneficiaries over legal fees is important, not only for the administration of the estate but also as a matter of business – a solicitor would not wish to be seen as unfairly charging excessive fees. The way to avoid such allegation is through accurate docketing and providing a paper trail to justify actions taken – including a decision to incur professional fees in addition to any compensation for estate trustee work.

Thank you for reading.
Ian Hull

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