A recent decision from the Law Society Tribunal Hearing Division provides lessons for wills and estates lawyers on what not to do when retained to draft a will for a client.
In this case, a lawyer was asked to prepare a Will for a hospitalized 94-year-old woman. He sent his law clerk to obtain instructions and draft the Will. The lawyer reviewed the Will, but he did not meet with the client at any time. Two of his law clerks visited the client to execute the Will and witness her signature. The law clerks made the determination that the client had testamentary capacity.
After the client passed away, the validity of the Will became the subject of litigation, with the allegation that the testator lacked testamentary capacity at the time she signed the Will. The lawyer represented the estate trustee in that litigation. The lawyer, however, did not communicate directly with the estate trustee, did not meet with her, did not obtain instructions from her regarding an offer to settle, and asked her to sign three affidavits without explaining what she was signing.
In the litigation, on numerous occasions, both opposing counsel and judges noted that the lawyer was in a conflict of interest as his office had prepared the Will in question and his staff members were likely witnesses. Nevertheless, the lawyer continued to act and did not mention this issue to his client. The lawyer’s position was that there was no conflict unless he himself would be called as a witness.
Opposing counsel brought a successful motion to remove the lawyer from the record. The estate trustee met her lawyer for the first time at the motion. Justice Gordon ordered the lawyer to personally pay the opposing party costs of $8,500.00 for the removal motion, stating that the conflict of interest “ought to have been readily apparent”. Justice Gordon also made an order stating that the lawyer could not charge the estate trustee for the motion to remove him and that he must reimburse any other monies she had already paid for this purpose.
The client wrote the lawyer and asked for a reimbursement of fees. The lawyer did not respond to the letter, nor did he reimburse her any money. The estate trustee filed a complaint with the Law Society of Ontario (LSO).
The lawyer co-operated with the LSO’s investigation and acknowledged his errors with the LSO’s investigator. He also reimbursed the estate trustee the required amounts.
The LSO found that the lawyer engaged in professional misconduct, as admitted to by the lawyer. He failed to serve both clients (the testator and the estate trustee) to the standard of a competent lawyer, contrary to Rules 3.1-2 and 3.2-1 of the Rules of Professional Conduct. A competent lawyer would have met with the testator to obtain instructions and attended when she signed her Will. Further, a competent lawyer would have communicated with the estate trustee, reported what was happening on the case, and would have obtained instructions with her on how to proceed.
Further, Rule 6.1-1 requires lawyers to assume complete responsibility for their practices and to directly supervise non-lawyer staff. When the lawyer delegated the tasks of receiving instructions from the testator and executing her will to his staff he engaged in professional misconduct.
And finally, he acted in a conflict of interest with the estate trustee, contrary to Rules 3.4-1 and 3.4-2. He had an interest in defending the quality of services of his firm, and he or his staff were likely to become witnesses. There was a substantial risk that his loyalty to, or representation of, his client would be materially affected by these personal interests. He did not disclose or seek consent from the client to continue to represent her.
There was an agreement on penalty and costs and the Tribunal concluded that the joint submission was reasonable. The Tribunal ordered that the lawyer’s licence to practice law would be suspended for 45 days, the lawyer would complete three additional hours of professional development on conflicts of interest and pay costs of $15,000.00.
This case is a reminder to all drafting lawyers of the importance of attending in person to assess the testamentary capacity of clients and to be mindful of conflicts of interest.
 Law Society of Ontario v Dinnen, 2019 ONLSTH 33 at para. 13.
 At para. 19.