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Solicitor’s Negligence in Estates and Trusts Context – No. 4: Checklist

CHECKLIST: COMMON ERRORS AND RECOMMENDED BEST PRACTICES IN AN ESTATES AND ELDER LAW PRACTICE

According to the article, Biggest Malpractice Claim Risks by Dan Pinnington of PracticePro[1] the top causes of solicitor’s negligence claims are:

  1. Communications-related errors;
  2. Deadline and time management concerns;
  3. Inadequate investigation or discovery of facts;
  4. Conflicts of interest;
  5. Clerical and delegation errors;
  6. Fraud claims; and
  7. Failure to know the law.[2]

Gleaned from the case law discussed above, and from “A Review of Ethics and Defensive Practice Tools in an Estate Planning Context”[3] by Margaret O’Sullivan, in order to avoid the common errors made by estate solicitors which may lead to negligence claims, consider the following recommended best practices:

  • Do not miss time limits or cause inordinate delay in carrying out client instructions;
  • Manage your client’s expectations;
  • Be clear in your communications with clients, solicitors, or third party beneficiaries;
  • Be careful with delegation and supervision of work;
  • Stay organized and diligent with your own self-management;
  • Have a clearly drafted and defined retainer;
  • Know your client’s legal issues;
  • Be cognizant of, and review for, omissions and drafting errors;
  • Do not “dabble” in a practice area that you are not familiar with;
  • Understand who your client is and his or her needs;
  • Understand the rules of conflict of interest and when a conflict might arise or be present;
  • Assess the urgency from a client who mighty be severely ill, i.e. time is of the essence, the exercise of common sense, perception and judgment. Come to an  agreement, regarding the time frame for completing the Will at the outset with the client;
  • Ascertain testamentary capacity and whether dementia, Alzheimer’s disease, cognitive dysfunction, delusions, mental illness, drug addiction, or alcoholism are present;
  • Ascertain undue influence or suspicious circumstances;
  • Be aware of the pitfalls of varying one will where mutual wills are involved;
  • When preparing a new will or codicil, examine the terms of the previous will and codicil;
  • Ask probative, open-ended and comprehensive questions which may help to elicit important information involving the psychology of the client executing the planning document.
  • Keep written notes of instructions taken and given, and dockets recorded;
  • In executing the will, make a checklist of all necessary items/matters attendant on validity: signatures, dates witnesses and their contact info, initialled etc.;
  • Be aware of, or wary of, terminally-ill clients and the need to get full disclosure of the client’s medical situation;
  • Be aware of high-risk matters where the proposed Will or estate plan, if not completed, will result in a “disappointed beneficiary”;
  • Be vigilant during “death-bed” planning or pre-nuptials Wills on the way to the altar;
  • Be vigilant when unreasonable time limits are imposed by the client: consider documenting timeframe for completion of the service after discussion with the client. Decline to act where timelines are unreasonable and prevent you from consulting fully with the client and other third parties or giving a matter appropriate time and attention.
  • Complete follow-ups with the client, confirming need for a response in writing, closing the file etc.
  • Be aware of high-risk situations:
    • Estate planning for spouses which impact matrimonial and family property rights;
    • Estate planning involving multiple parties including shareholder and buy/sell arrangements and cottage succession planning;
    • Lending arrangements between family and other non-arm’s length parties;
    • Property transfers among family and other non-arm’s length parties, in particular “improvident” transfers and those involving valuations;
    • Estate freezes by parents, including where only one child may benefit from the freeze and receive the benefit of future equity growth;
    • Where there is unequal treatment of children in an estate plan or Will and where the law firm has acted for multiple generations of the family in prior separate retainers, include those members who are to receive preferred treatment;
    • Estate planning involving the lawyer’s family members;
  • Act on a timely basis in assisting in the administration of an estate or trust;
  • File tax returns and elections and attend to other tax compliance on a timely basis; and
  • Finally, always be mindful of the Code of Professional Conduct[4] (as applicable in the lawyer’s jurisdiction)

CONCLUDING COMMENTS

Certainly, the case law concerning solicitor’s negligence is vast, and expanding, and consequently illustrative of a need for heightened awareness and diligence. There is a clearly defined duty of care owed by the estate planning solicitor. Liability in negligence will be sustained by the solicitor in relationships which are proximate and reasonably foreseeable. The solicitor must exercise diligence in avoiding acts or omission which may be detrimental to the testator/client and the intended beneficiaries.

[1] Dan Pinnington, Biggest Malpractice Claim Risks, PracticePro online: http://www.practicepro.ca/LawPROmag/Pinnington_Biggest_Malpractice.pdf

[2] Dan Pinnington, Biggest Malpractice Claim Risks, PracticePro online: http://www.practicepro.ca/LawPROmag/Pinnington_Biggest_Malpractice.pdf

[3] Margaret O’Sullivan, “A Review of Ethics and Defensive Practice Tools in an Estate Planning Context” 14th Annual Estates and Trusts Summit, Law Society of Upper Canada, November 10, 2011.

[4] Code of Professional Conduct, Law Society of Prince Edward Island, http://lawsocietypei.ca/media/for-lawyers/regulation/Professional%20Code%20of%20Conduct.pdf

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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