Frequently, a person – say, a mother – would name the same person – say, her son – as her attorney for property under a power of attorney and the executor under her will. Upon the mother’s death, the beneficiaries have the right to compel the attorney/executor son to pass his accounts for the period of time he acted as the mother’s attorney for property. In accordance with the Rules of Civil Procedure, on a passing of accounts application, the beneficiaries may deliver their objections and the son has a chance to provide his justifications.

The lawyer who acted for the deceased and/or the attorney/executor, in his capacity as an attorney or executor, may be a material witness on such passing of accounts applications. Accordingly that lawyer risks being removed as counsel of record to the attorney/executor. This was the result in Tierney (Estate) v. Brown, 2015 ONSC 4137.

In Tierney (Estate), the deceased appointed his daughter as the attorney for property and the executor in his estate. The daughter used the same lawyer to advise her in her role as attorney for property and later as estate trustee. Some of the daughter’s transactions, which were handled by the said lawyer, as attorney and as estate trustee have come under scrutiny on a hotly contested passing of accounts application. The lawyer, of course, would be a material witness. The court appeared to show no hesitation in removing the lawyer as lawyer of record for the daughter.

In Southam v. Southam, 2005 CanLII 30331, the same decision was reached on a set of similar facts. The deceased’s attorney for property and executor under her will were one and the same, namely, her son. The lawyers in question acted for the deceased when she made the power of attorney. They were subsequently retained by the son in his capacity as estate trustee. The court found that the lawyers would likely be called upon to testify as to her intentions and capacity when she created the power of attorney. The court found that the lawyers were in a conflict in that they owed a duty to the son as a client and a duty to the beneficiaries of the estate.  There was an appearance of impropriety as the son paid the lawyers out of estate funds.  As such, the plaintiff was contributing to the son’s defence. The court readily ruled in the moving plaintiff’s favour.

Once a family has come to trust and become comfortable with a particular lawyer, its members are likely to rely on the same lawyer for all of their legal needs. At all times, however, the lawyer ought to be vigilant as to potential conflicts.