Solicitor’s Negligence: Suing the Will-Drafting Lawyer

Sometimes, due to the drafting lawyer’s negligence, a will may not reflect the testator’s requests, unbeknownst to them. Perhaps the lawyer failed to carefully review the directions given to them by the testator, or improperly applied the law, making an error which causes the will to be invalid. In either case, the beneficiaries of the will often discover these mistakes themselves and must find a remedy. Usually, these types of errors cause the beneficiaries of the will to sufferEven though the beneficiaries are not directly clients of the will-drafting lawyer, do they have a valid legal claim? The answer is commonly yes; beneficiaries can sue solicitors for negligence, depending on the facts of the case.

A Lawyer’s Standard of Care

As described in the case of the Central Trust Co. v. Rafuse (1986), “a solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken.” When negligence claims arise, the question that the courts must ask is whether a reasonably competent lawyer in the same situation would have made the same mistake or not. It is not a question of the drafting lawyer being perfect in their conduct, rather just that they were acting reasonably.

The Law Society of British Columbia enforces a high standard of care for all BC lawyers handling client cases. They provide a checklist outlining tasks that will-drafting lawyers must adhere to. Some of the common errors made by will-drafting lawyers which can result in a negligence lawsuit are:

• Not writing detailed notes on the client,
• Not using proper witnesses for the will,
• Not interviewing the client thoroughly enough,
• Not suspecting undue influence,
• Missing limitation dates on taking certain actions, or
• Forgetting to include a certain provision that the client requested.

Any one of these mistakes could alter the main principles or function of a will. When mistakes occur, beneficiaries can face significant financial loss.

Beneficiaries Suing the Lawyer

Until recently, the courts took the position that lawyers only owed a standard of care to their clients (in this case, the testator). Lawyers did not owe a standard of care to the beneficiaries of the will. Most of the time, the client of a negligent lawyer has no recourse as they have passed away before the negligence was discovered. This made the standard impractical. Now, a beneficiary is able to take legal action against the will-drafting lawyer – solicitors owe a duty of care to the third parties affected, including beneficiaries of a will.

The case of Whittingham v. Crease & Company (1978) examines a scenario where a will-drafting lawyer is held accountable for their negligence. In this case, the solicitor did not follow the proper procedures for witnessing a will in British Columbia. The witnesses were unsuitable as they had an interest in the will. One of the witnesses was married to a beneficiary. The will was ruled invalid due to this error and the testator died intestate (without a valid will).

Due to intestate succession laws, the plaintiff (a beneficiary) received less of the estate than he would have if the will had been valid. Believing he had suffered a loss because of the lawyer’s incompetence, the beneficiary sued the lawyer for negligence.

The Court’s Decision

The solicitor should have understood their responsibility to provide accurate information, because the client sought them out for professional advice. The courts ruled that the solicitor in this case committed the following acts of negligence:

1. Failing to take care to ensure that in the matter of the witnessing of the said will the provisions of s. 12(1) of the Wills Act were not contravened;
2. Failing to take any reasonable steps at all to remedy the said failure;
3. Requesting the wife of the plaintiff to act as a witness to the execution of the said will;
4. Misstating to the plaintiff that it was safe for his wife to act as a witness to the execution of the said will.

Due to the acts of negligence, the court ordered the lawyer to compensate for the damages suffered by the beneficiary. Though this is an older case, it demonstrates how a clear act of incompetence by a will-drafting lawyer will hold the lawyer accountable if a beneficiary suffers as a result.

Contact an experienced estate lawyer today if a solicitor’s mistake has wronged you as a beneficiary. We can support you in holding the will-drafting lawyer accountable for their negligent acts.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.