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Solicitor’s Negligence in Estates and Trusts Context – No. 9: Case Reviews

More Estate Cases  Reviewed: Michiels v. Kinnear, 2011,Meier v. Rose, 2012, &Vincent v. Blake, Cassels & Graydon LLP, 2013

2011: Michiels v. Kinnear

This case[1] arose after the plaintiff and her (subsequently deceased) husband transferred their matrimonial home to certain family members subject to a life interest in favour of the plaintiff and her husband. The husband, who had terminal cancer, died three weeks after they executed the transfer. The plaintiff sued the transferee family members as well as the solicitor who drafted the deed, for damages in the amount of approximately $170,000.00 to compensate her for the loss of the property. It was the plaintiff’s position that she would have inherited the property upon her husband’s death had it not been for the conveyance. The plaintiff argued that the solicitor was professionally negligent and breached his fiduciary duty as: he did not advise her to get independent legal advice; failed to act cautiously given the plaintiff’s illiteracy and the husband’s impending death; failed to properly report with respect to the conveyance; failed to explain the significance of what they were doing including the significance and meaning of a life interest in real estate; failed to explain her rights as a joint tenant; failed to satisfy himself that his clients understood the nature and effect of what they were doing; and failed to advise the plaintiff that the transfer of the real estate would leave her with no financial interest in the property notwithstanding the fact that the property represented the primary asset of the plaintiff and her husband.[2]

The solicitor, in a written submission through his counsel, admitted that he did not meet the standard of care:

Without admitting that he caused the loss complained of by the plaintiff, Mr. Vadala admits that he did not meet the standard of care expected of a reasonably competent real estate lawyer in the circumstances of the transfer. . .[3]

In light of the admission, the Court ruled that it would be unnecessary and, indeed, incorrect for the Court to hear expert testimony at trial concerning the relevant standard of care of a solicitor practicing real estate law in Kingston (where the solicitor practiced).

However the issue remained whether Mr. Vadala’s breach of the standard of care caused or contributed to the alleged damages. The Court found that the plaintiff failed to meet the burden of showing that ‘but for’ the negligence and breach of fiduciary duty on the part of the solicitor, the alleged loss would not have occurred:

It does not follow automatically that had Viola sought independent legal advice or had Mr. Vadala acted without negligence or in breach of his fiduciary duty, Viola would not have proceeded with the gifts.  She might have maintained her original position – i.e., to gift the properties.  Gifting of the real estate was clearly what she had planned to do when she consulted with Mr. Vadala and, on the facts as I have found them, she clearly intended to later gift the personal property to Leslie and Les and give up her life interest.[4]

The Court was persuaded by all of the evidence that causation was not established and that the lawyer had met the burden of proof on him: even given the breach of fiduciary duty in addition to the negligence, the solicitor’s conduct did not cause the plaintiff to divest herself of her property by way of gifts. The Court also found that the plaintiff’s action was statute barred. She knew something was wrong in the spring of 2004 and that she was unhappy about what had happened but she did not commence a claim until September 2007. She could have exercised due diligence by consulting another lawyer at that time. She did not do so. According to her allegation and her testimony, at that time, in the spring of 2004, she knew that she had suffered a loss; she knew that the solicitor had caused or contributed to that loss; she knew that the solicitor was involved; and she knew that she could have sought redress through the courts. All of this information would have been within the grasp of a reasonable person with the abilities and the circumstances of the plaintiff.[5]

2012: Meier v. Rose

In the Alberta Queen’s Bench case of Meier v. Rose[6] the Court found that a drafting solicitor acted negligently in the preparation of a will. The solicitor prepared a will for Gary Meier. The plaintiff, Robert, was the deceased’s brother and a beneficiary under the will. The will bequeathed four quarter sections of farmland to the brother however the gift failed because the deceased never actually owned the lands at the time of his death, the deceased’s corporation owned them.

First, the Court confirmed that a duty of care was owed to the disappointed third party beneficiary, Robert Meier:

In this case, Mr. Rose had a duty to his client, Gary Meier, to prepare his will using proper care in carrying out his instructions in order to effectively confer the intended benefit to Robert Meier. . .I am satisfied that the interests of Gary Meier, the testator, and Robert Meier, the disappointed beneficiary, are in harmony and there is no possibility of conflict. Further, Robert Meier has no other available remedy as the intended specific bequest under the will failed.[7]

Second, the Court examined whether the solicitor was negligent, specifically, was he negligent in failing to ask who owned the land the deceased wished to gift to his brother and/or conduct a search at land titles of that land to ascertain or confirm ownership. Goss J. stated:

I find that in all of the circumstances, there was ample reason to make further inquiries on the information being received from Mr. Meier regarding ownership of the land to be specifically gifted. At no time did Mr. Gary Meier, from the evidence before me, limit the retainer which he entered into with Mr. Rose regarding the preparation of the will. Mr. Meier was always in a hurry and often did not make appointments. Mr. Meier demanded that Mr. Rose undertook to prepare Mr. Meier’s will in one day. There is no evidence supporting the conclusion that the retainer was limited in any way other than by the constraints of time. No avenues of inquiry by Mr. Rose were shut down or dismissed by the testator in their meeting. The testator provided all of the information requested by Mr. Rose. He examined the titles in his possession and provided Mr. Rose’s office with the correct legal descriptions of the land to be gifted to Bob Meier. There is no evidence that copies of the titles themselves were requested by Mr. Rose, nor that they were provided by Mr. Meier. Information as to ownership of the lands to be bequeathed to Robert Meier was neither requested of the testator nor provided. The limited time stipulated for completion of the will did not limit the standard of care required of the solicitor including to be skillful, careful and advise on all relevant matters in that time period.[emphasis added][8]

Expert evidence was called concerning the practice of solicitors in taking instructions on and preparing a will and Goss J. concluded:

After considering the evidence of the two experts on the standard of care expected of a reasonable competent solicitor, I am satisfied that a reasonably competent solicitor in 2000, retained to prepare a will for a client for execution the following day, who knew that the testator has used a corporate vehicle to hold title to some of his land and who was familiar with his client’s tendency not to distinguish between his personal and corporate ownership of land, would take the step to ascertain ownership in preparing a legal document such as a will by conducting a title search on the legal descriptions provided. A reasonably competent solicitor in those circumstances would, at a minimum have asked who owned [the] land to be gifted in the will or done a search to ascertain in ownership.[emphasis added][9]

The Court went on to look at causation and asked: Would the gift have failed if the solicitor had not been negligent in failing to ascertain ownership of the land in question?  The Court concluded that it was satisfied on the balance of probabilities on the evidence before it that but for the negligence of the defendant the injury or loss to the plaintiff would not have occurred. The deceased would not have signed the will as drafted had he known that the bequest to his brother would fail. He signed the will as drafted, confident that his intentions were properly given effect.[10] Damages were calculated on the value of the property at the date of death.

2013: Vincent v. Blake, Cassels & Graydon LLP

The son of the testator brought a professional negligence claim against the solicitors who drafted his mother’s will and completed an estate freeze.[11] The son alleged, among other things, that his sister had unduly influenced his mother so she would benefit to a greater extent than the son, under the will and estate freeze, even though the mother’s intention had been for her children to be treated equally. The son based his allegations of undue influence, in part, on the fact that the solicitors had been his sister’s professional advisors for a lengthy period of time and that they had ignored the mother’s request that the children be treated equally.[12]

The defendant solicitors brought a summary judgment motion seeking to dismiss the action claiming that they owed no duty of care to the son who was a third party beneficiary.[13] Such a claim, they argued, would place a solicitor in direct conflict with the duty owed to his or her client: the testator.

Justice Stevenson, however, held that the question as to whether the solicitor owed a duty of care to the plaintiff beneficiary was a triable issue and refused to dismiss the action.[14] Her Honour agreed with the son’s counsel that the case law relied upon by the solicitors could be distinguished as those cases that dealt with beneficiaries under prior wills who wished to challenge subsequent Wills. In those situations, the interests of the testator were not aligned with those of the beneficiary. Here, where the son argued that the intention of the testator was not fulfilled by the solicitors, it was not clear on the facts whether the testator’s interests were in direct conflict with the son’s or if they were aligned.[15] Therefore a trial was required.  To date, no trial decision has been reported.

See you next Blog!

[1] Michiels, supra note 55.

[2] Ibid at para 10.

[3] Michiels, supra note 55 at para 14

[4] Ibid at para 170.

[5] Michiels, supra note 55 at para. 186

[6] 2012 ABQB 82 [Meier]

[7] Ibid at para 14.

[8] Meier, supra note 80 at para 59.

[9] Ibid at para 60

[10] Ibid at paras 69-71.

[11] Vincent v. Blake Cassels & Graydon LLP, 2013 ONSC 980 [Vincent].

[12] Ibid at paras 23-24.

[13] Ibid at para 32

[14] Ibid at para 43.

[15] Ibid at para 46.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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