Tag: solicitor negligence
A lawyer was sued for negligence in allegedly failing to ensure that a will was not procured by undue influence or as a result of the testator’s lack of testamentary capacity. On examination for discovery, the lawyer was asked to advise as to texts or other secondary sources that the lawyer regarded as authoritative regarding the drafting of wills, and to advise as to whether the lawyer was aware of any cases (primary sources) that indicated that the lawyer was not required to document evidence of testamentary capacity.
The lawyer refused to answer those questions. The plaintiff brought a motion to compel the lawyer to answer. Must the lawyer answer those questions?
In Marshall v. Jackson, the motions master ordered the lawyer to answer the questions. On appeal, reported at 2021 ONSC 2361, the court held that the questions need not be answered.
The appeal judge held that it was trite law that a party cannot function as his or her own expert. By ordering the questions to be answered, the master in effect required a fact witness to research and deliver a legal opinion, which was contrary to a first principle of the law of evidence. Citing the Supreme Court of Canada, the appeal judge stated that “it is for the [trier of fact] to form opinions, and draw inferences and conclusions, and not for the witness”. The questions, it was held, went beyond asking the defendant for his or her general understanding of the steps he or she should have taken to ascertain testamentary capacity, but required that the lawyer research primary and secondary sources of law in an effort to provide support for legal reasoning going to the standard of care.
A third question was also refused: whether the defendant “understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity”. The defendant submitted that the question was too broad to be answerable. Would “all available means” include hiring a team of psychiatrists to evaluate the testator’s capacity? The appeal judge held that while the defendant’s counsel may have a point, the fact that the question was excessively broad did not make it unanswerable. “Indeed, the very absurdity of the literal meaning of the question makes it an easy one to answer.” Presumably, the answer will be “No”.
Next question, counsel?
Thank you for reading.
What is a solicitor’s duty when preparing a Will?
Those seeking to answer this question should start their journey with the BC Court of Appeal decision of Chalmers v Uzelac. Here, Madam Justice Southin noted that, “every solicitor who, as part of his or her practice, draws wills should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions”.
Murphy is a seminal case. The Court found that it was wrong to assume that because a person can understand a question put to them, and give a rational answer, that they are of sound mind and capable of making a Will. Instead, the Court emphasized that capacity must be judged in light of the nature of the act and all of the circumstances:
“A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.”
Expanding on this, the Ontario Court of Appeal in Hall v Bennett Estate references an article by M.M. Litman & G.B. Robertson which identifies common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a Will, including failing to: obtain a mental status examination; interview the testator in sufficient depth; properly record/maintain notes; test for capacity; and, provide proper interview conditions.
Read, mark, and inwardly digest this blog at least once a year accordingly.
If you consider this blog interesting, please consider these other related blogs: