Although the temporary emergency Order has only been in place for a few days, there is no question that lawyers have already begun to virtually witness the execution of wills and powers of attorney. A complimentary CPD program on the issue was put on by the Law Society of Ontario (LSO) last week, chaired by Ian Hull. A link to it is here. LawPRO has also provided a helpful commentary on the subject matter from the perspective of risk-avoidance here, and below I draw upon the points made that may help lawyers lessen their risk of a malpractice claim.
As much as lawyers may be focused on adhering to the requirements under the emergency Order, LawPRO reminds us that the most common cause of malpractice claims in the estates area is inadequate investigation – a failure to inquire about assets, prior wills and details about past and present marital and familial relationships. The second most common error is a communication failure – not ensuring consistency between the draft will and the instruction notes, and not ensuring that the solicitor and client each understand the other. So it is important to keep risk management tips here top of mind, particularly given that it may be more difficult to effectively communicate or ensure that clients understand documentation when conducting virtual client meetings.
As related specifically to virtual witnessing of wills and powers of attorney, LawPRO has various suggested steps to lessen the risk of a claim, which I comment on below.
- Comfort – Some clients may not be as ease with video technology and/or discussing personal matters through this medium. Take the time to establish that all participants are comfortable.
- Identification – As a result of Covid-19, the LSO is not requiring face-to-face meetings to identify or verify a client’s identity. Here you can find the LSO’s guidance on the issue, and LawPRO’s video conference checklist (accessible through the LawPRO link above) will help lawyers consider the steps needed before, during and after a video conference meeting.
- Capacity and undue influence – These known risks may be more difficult to assess through virtual communication, making it all the more important that certain precautions be taken, such as: (i) asking open questions, and follow up questions, (ii) asking questions to establish that the client is acting independently (e.g. explore relationships and reasoning in detail when marked changes are being made), (iii) when acting for one client, make sure the client is alone in the room (consider asking for a video pan of the room if you can’t clearly see it), and (iv) take notes reflecting consideration of capacity and undue influence, especially if there are any concerns. Here you can find a checklist WEL Partners has created for indicators of undue influence during video meetings, and the LSO has released a special comment on the issue here.
- No counterparts – You will need multiple virtual meetings so each witness can sign the original will or power of attorney. Video conference wills will also likely require a different affidavit of execution, and here you can find our recent blog that provides sample affidavits of execution.
- Document your work – Particular scrutiny may be given to documents executed during this health crisis. Taking detailed notes or recording the meeting (with client consent) will document what occurred, and reporting to the client thereafter will serve to confirm your instructions.
- After the emergency – Although not required, once it is safe to do so consider recommending that your clients re-execute their testamentary documents in the physical presence of witnesses.
To help mitigate the risk of a claim, Hull eState Planner has created checklists for executing wills and powers of attorney by video. The will execution by video checklist can be found here and the powers of attorney execution by video checklist can be found here.
The Covid-19 situation is creating rapid change, and at Hull & Hull LLP we are monitoring things on a daily basis. I encourage you to continue to access our website for further updates. Our resource page can be found here.
Thanks for reading and have a great day,
Yesterday I blogged about the usefulness of blogs for lawyers. Today I will provide some specifics and recommend a few blogs to you.
The advantage of blogs as a publishing vehicle is the access to information in real time. The latest news and topics are always available and you can get your own information out to the legal community and to potential clients without having to wait for the printing press. The pressure is a bit less as well because on some level blogs are meant to entertain, and no one expects them to be perfect – blogging is, after all, immediate media.
One well-respected Canadian law blog that has been around since 2005 and has many regular contributors is Slaw.ca. Slaw provides a variety of high-quality information relevant to the legal profession and editors make sure that content is appropriate for its intended audience, comprised mostly of lawyers, law librarians, legal academics and students – i.e. a general level of legal information is assumed. Note that you will still see this caveat, which illustrates exactly why lawyers are often hesitant to blog: “But please note: we do not offer legal advice, even in the most vague terms.”
Another great blog you should check out is practicePRO’s avoid a claim blog with a tagline of “Where claims happen, Why claims happen, And what you can do to avoid a claim happening to you”. Now that is a blog we should all be reading on a regular basis!
Enough about information and risk – what about good old fashioned business? Sometimes lawyers can use a little advice in this area also. Check out this Canadian legal marketing blog to pick up a few hints and tips so you can not only be smart, connected and well-informed, but be able to pay to pay the bills while doing so.
Now you are ready to go out there and blog!
Sharon Davis – Click here for more information on Sharon Davis.
On Tuesday I blogged about mortgage fraud and suggested that financial institutions may be at greater risk because of the B.C. Court of Appeal decision: Re Oehlerking Estate, 2009 BCCA 138.
Why would they be at increased risk?
In the B.C. case, the Judge ordered that the fraudster’s title be set aside and that a new title be issued in the name of the plaintiff executrix. However, the Judge was satisfied that the financial institution had not “participated in the fraud” therefore the mortgage remained as a valid charge on title to the land.
The B.C. Court of Appeal overturned that latter point when it declared that the mortgage is null and void as against the plaintiff and her title.
The reasons were the same as those presented in a B.C. Court of Appeal decision released on the same day in Gill v. Bucholtz (2009 BCCA 137). There is a thorough review of the Torrens land registry system and the development of B.C.’s Land Title Act. Land title systems differ per province but the B.C. decision is likely persuasive.
In Gill v Bucholtz, the Court held that the B.C. Legislature adopted the policy that the cost of frauds perpetrated against mortgagees and other chargeholders should be borne not by the public (as the funders of the Assurance Fund but by lenders and other chargeholders themselves.”
Parties to real estate transactions rely on title searches. The case law shows that title searches have limitations, especially if a fraudster has used someone else’s identification to change the title document. It is up to lenders to now perform due diligence that may require that they delve deeper than the documents alone. Sometimes good old fashioned shoe leather might be put to work to check out the property in question; even a knock on the door to ensure that the owner is actually refinancing by way of a new mortgage. This extra work may come with a fee though.
Thank you for reading.
Contingency fees are new in the Province of Ontario and particularly new in the field of Estate Litigation. The extent of the regulation of these fee arrangements reflects the unease with which the Province’s legal community regards them.
Regardless of this apparent unease, on issues of the validity of a Will or a person’s interest in or claim against an Estate, some clients are increasingly tending to favour contingency arrangements.
Where the legal issue at stake is the validity or otherwise of a Will, then a litigation result will often be an all-or-nothing proposition. Such an issue is well-suited to contingency fees.
Some of the practical issues raised by the arrival of contingency fees at this early stage are:
1. These cases are not immediately profitable, so any law firm wanting to explore contingency opportunities ought to be prepared to wait a few years to see substantial return;
2. Lawyers must allow the client to make all major decisions, knowing that some of those decisions may be unreasonable or risky, thereby lessening the possibility or value after costs of recovery, thereby lessening what the lawyer will be paid in case of success, and this business frustration cannot be allowed to interfere in the lawyer’s function as advocate and legal service provider. The lawyer is still restricted to giving advice, taking instructions and fulfilling them even if those instructions impact on the chances of getting paid;
3. Lawyers ought to be very clear with clients at the outset that they may obtain a windfall in case of early settlement, even to the extent of putting those very words to the client in writing.
Early indications are that contingency fees in litigation offer a further avenue for lawyers to take on otherwise marginal cases from a business perspective, and an avenue for access to justice for clients of lesser means, albeit lawyers must take care not to allow the fee arrangement to interfere with their fundamental role as advocating, advising and fulfilling the client’s legitimate instructions, however that may impact on the chances of getting paid.
Thanks for reading.