costs against lawyers

Personal Court Costs Against Lawyers

C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society. The court found that the lawyer’s tactics and strategy had caused an… Read more

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

The duty of a lawyer/solicitor  in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51. Suspicious Circumstances Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is… Read more

Ensuring Independent Legal Advice

Ensuring Independent Legal Advice

Many transactions are set aside in British Columbia by the courts on the basis that true independent legal advice was not obtained by the person making a radically changed will or transferring an asset for little or no consideration. A lawyer’s duty in such situations… Read more

Independent Legal Advice

Independent Legal Advice – 7 Factors to Look For

I am typically attempting to set aside a transaction or a will and I often look to see if there was independent legal advice (ILA) given and if so, was it truly independent. For example on a recent file a daughter took her mother to… Read more

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Friesen v Friesen Estate (1985) 24 ETR 191 sets out inter alia the heavy duty upon a lawyer taking instructions for a will to investigate and satisfy him or herself that the testator has testamentary capacity. 77      The law reports of England and Canada are replete… Read more

The Duty of Care Owed By a Will Drafter

In Korpiel v Sanguinetti (1999) B.C.J. 1048 the court concluded that a will drafter, usually a solicitor or notary, owes no duty of care to beneficiaries beyond the competent and timely fulfillment of the testator’s testamentary instructions.   In the Sanguinetti case, the court considered… Read more

Court Costs Awarded Against Lawyer Personally

The Supreme Court of Canada dismissed an appeal of the Ontario Court of Appeal upholding a a substantial award of court costs against a  lawyer personally for his handling of a case found to be vexatious and an abuse of process.  The client was also jointly… Read more

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia… Read more

Negligence Standard Same For Lawyers and Notaries

Negligence Standard I recently advised an inquiry that the negligence standard for a lawyer/solicitor is the same as that for a notary public. The authority for that proposition was initially pronounced in British Columbia in the decision Flandro v Mitha (1992) 93 DLR (4th) 222 at… Read more

Some Aspects of Negligence

Many lay people have a basic understanding of what it means to assert that someone was negligent towards another. Dhillon v. Jaffer 2014 BCCA 215 had the following summary of some aspects of negligence ( 27)     The first principle is causation. It need hardly be stated… Read more

Sue the lawyer

Disappointed Beneficiary? Sue the Lawyer

Recent statistics issued by the Law Society indicate that approximately 4 – 6% of their claims both in number and in dollars, arise out of solicitor’s negligence relating to wills and estates. Apparently, over 40% of all claims result from either insufficient preparation or insufficient… Read more

The Disappointed Beneficiary vs the Negligent Lawyer

A disappointed beneficiary is one who fully expected to inherit, should have inherited, but due to the lawyer’s negligence in failing to prepare and have the will executed by the testator in a “ timely manner”, the testator in the interim dies without having ever… Read more

Drafting Lawyers Evidence Rejected -Not Credible or Reliable

Drafting Lawyers Evidence Rejected Sawdon Estate v Watch Tower Bible & Tract Society of Canada 2012 ONSC 4042 involves a case where there was a dispute as to whether seven joint bank accounts with two of the deceased five adult children, went to the five… Read more

Wills Lawyer Liable For Damages to Intended Beneficiary

Meier v Rose 2012 CarswellAlta 185 is a good example of a lawyer’s negligence in the preparation of a last will and testament, and the consequent damages awarded by the court against the lawyer in favor of the intended beneficiary who did not inherit. The… Read more