Our review of estate related solicitors’ negligence cases continues:

2015: Walman v. Walman Estate

While this case is not a solicitor’s negligence case it provides a helpful overview for drafting solicitors for ‘best practices’ when interviewing clients. Walman v. Walman^[1] involved a will challenge with allegations that the testator lacked testamentary capacity and that his will and certain inter vivos transfers were a result of undue influence.

The testator was a “quiet gentle man” who had a long career in the financial services industry and who was close with his three sons. When his first wife died, he remarried. Unfortunately, his second wife did not have a good relationship with his sons from his first marriage. In 1999 he was diagnosed with Parkinson’s disease and in 2003 he was diagnosed with Lewy Body Dementia. Between 2003 and his death in 2009 at the age of 88, the testator’s cognitive function decreased and he would become confused (getting lost in his bedroom, making mistakes writing cheques, etc.), he began to suffer from hallucinations, he had trouble following conversations, and he suffered from delirium, among other ailments.

Between 2003 and 2007 the testator executed three wills, each one superseding the prior. He also made capital asset transfers to his wife, as his wife had convinced him that she was running out of money due to costs of his attendant care.

The effect of the third will and the capital transfers resulted in the wife inheriting all of the testator’s assets, with a very small amount of between $5,000 and $10,000.00 to be split between his three sons (in his previous wills the sons were substantial beneficiaries of his estate). The sons challenged the will and inter vivos transfers alleging that their father lacked testamentary capacity and that the will and transfers were a result of undue influence by the wife.

In 2006 the wife set up an appointment with the solicitor who had drafted her husband’s will in 2005 so that he could draft a codicil to the will that stipulated that if anyone challenged the will that person would be disinherited. However, when the solicitor met with the husband alone, he refused to sign the codicil, stating that the will was “alright the way it [was]”.^[2] In 2007, the wife called the same solicitor again advising that her husband wanted to cut one of his sons out of the will. The solicitor stated that he would prefer to have a doctor’s assessment confirming that the husband was competent before preparing a will excluding one of his children. This solicitor never heard from the wife or husband again.

The wife sought out a second solicitor who determined that the husband had testamentary capacity and drafted a new will for him. While the husband chose not to disinherit any of his sons in this new will their inheritance was significantly less than under previous wills. The wife did not tell this new solicitor that the previous solicitor suggested the husband get a capacity assessment. He was also not advised that the husband suffered from Lewy Body Dementia.

Justice Corbett noted that the second solicitor did several things “right” in his meeting with the husband to determine testamentary capacity:

• he interviewed the testator alone,
• he kept good notes, and
• he “asked questions that, facially, comport with the requirement of determining whether the testator understood the extent of his assets”.^[3]

On the second solicitor’s evidence, the husband also understood who the persons were with a moral claim against his estate, and he had reasons for reducing his bequests to his sons. ^[4]

However, Justice Corbett was of the view that the drafting solicitor should have taken his inquiries one step further and that where there is a filial estrangement the solicitor needed to conduct a “more probing inquiry”.^[5] According to Justice Corbett, the solicitor should have explored whether the testator understood not only what his assets were but also if he understood what his wife’s assets were as he was proposing to cut his children out of an inheritance in favour of his wife.^[6] The testator also needed to understand the dispositions he had made to his wife already. The husband’s explanations to the second solicitor were based only on his understanding of his own assets at the time the third will was made and did not reflect an understanding of the wife’s financial position or the extent to which she had or would receive money that had been the husband’s (through joint accounts, etc.) ^[7] Justice Corbett did not accept that the husband had a “true appreciation of his overall financial position, or of the state of his relations with his sons, both as a result of the burden of his severe affliction with Lewy Body Dementia and the wife’s undue influence.”^[8]

Ultimately, the Court found that the husband lacked testamentary capacity and that the wife had unduly influenced the husband to make the will and the inter vivos transfers. This case seems to suggest that the testator must not only understand the extent of his own assets but also of those who may be inheriting under the will. Or in other words the testator must understand the “big picture” and not just a simple understanding of his assets.

2015: McLaughlin (Estate of) v McLaughlin

The facts of McLaughlin are unique but the case imparts important lessons to wills solicitors in ensuring their clients have read the will or that the solicitor at least reviews the material aspects of the will with the client.^[9] It should go without saying that a solicitor should ensure they read the will if they have had a clerk draft it.

In McLaughlin the testator, Elizabeth Anne McLaughlin, executed two wills to avoid paying probate tax on the asset of the secondary will which dealt solely with her house. The secondary will had to be rectified in a prior hearing as the secondary will when drafted omitted a residue clause that included only the house, and duplicated the bequests as set out in Mrs. McLaughlin’s primary will.^[10] In addition the secondary will repeated the revocation clause in the primary will which stated:

I hereby revoke all wills made before this will, but not the Will made the 16^th day of June 2010 to dispose of real property located at 78 Wellington Street East, Brampton, Ontario.^[11]

The effect of the secondary will unrectified would have meant that the beneficiaries under the primary will could claim an entitlement to two separate bequests, one under the primary estate and another from the secondary estate. Further, the residue of the secondary estate would go by way of intestacy and be equally distributed amongst all five children of Mrs. McLaughlin.^[12] This would have meant that the house would be distributed by way of intestacy. The testator in her prior wills had disinherited two of her five children.

Justice Lemon ordered the secondary will rectified but in doing so he found that the testator had not read nor knew what she was signing.^[13]In addition Lemon J found that the drafting solicitor, Mr. Walsh, did not read the document before it was signed and that “Mr. Walsh left it to his secretary to prepare the wills. His secretary no doubt left it to him to review them (and it would be his obligation to do so).”^[14]

After the secondary will had been rectified a motion was brought before Justice Price to have the notice of objection removed so that a certificate of appointment could be issued for the primary will. Justice Price invoked the court’s inquisitorial approach when dealing with probate matters and ordered a subsequent hearing to deal with the wills validity in light of Lemon J’s finding that the testator did not read nor know what was in the will she executed.^[15]

At the subsequent hearing counsel agreed with the Court that Justice Price could hear the matter of the wills validity despite the will having already been rectified.^[16] The Court focused on the issue of whether the testator could have had knowledge and approval of the contents of the will where the Testator had been found not to have read the will or known what was in it. The Court provided practical advice for drafting solicitor’s saying:

It is clear from the jurisprudence that a testator should read or have the will read over to him/her.  At the very least, the contents of the will should be brought to the testator’s attention at some point before the execution of the will.  The testator must know what is in the document that he or she is signing. The understanding does not have to be that of a lawyer, but it must be sufficient.^[17]

The Court held it was bound by Lemon J’s findings of fact and the uncontroverted evidence before Lemon J. where the drafting solicitor under cross examination concluded “that it was highly unlikely that we reviewed and went through the real estate will.”^[18] As Mrs. McLaughlin did not read the will and did not have the knowledge of or approve its contents the secondary will was found to be invalid.^[19] The Court then ordered the primary will to be proven in solemn form.^[20]The ruling is currently under appeal at the Court of Appeal.

Solicitors who draft wills need to ensure they review the will with their client before execution to protect the will’s validity. This practice should be documented in the drafting solicitor’s notes.

See you next Blog!

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[1] 2015 ONSC 185 [Walman].

[2] Walman, supra note 110 at para 46.

[3] Ibid at para 55.

[4] Ibid at para 97.

[5] Ibid at para 56.

[6] Walman, supra note 110 at para 55

[7] Ibid at para 106.

[8] Ibid at para 99.

[9] 2015 ONSC 4230 [McLaughlin].

[10] McLaughlin et al v McLaughlin et al, 2014 ONSC 3162 at paras.2. 20

[11] Ibid at para. 23

[12] Ibid at para. 22

[13] Ibid  at para. 79.

[14] Ibid at para. 75,78.

[15] McLaughlin v McLaughlin, 2015 ONSC 3491.

[16] Supra note 119 at para. 35, 42.

[17] Supra note 119 at para. 73.

[18] Ibid at paras. 58-67.

[19] Ibid at para. 85.

[20] Ibid at para. 86.

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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.