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 a lawyer and instructed the lawyer to transfer the mother’s property into joint tenancy with her mother’s grandson, the son of the instructing daughter.
The owner/grandmother then died and the grandson purported to be the owner of the property.
When we obtained and reviewed the lawyers file, he not only took instructions to prepare the transfer from the mother of the recipient grandson of the interest in joint tenancy, but the bill was also rendered to the daughter , while meanwhile the lawyer takes the position that he acted for the donor grandmother.
If so, where was her independent legal advice?
Factors to Look For in Independent Legal Advice
1. The person taking advantage of the wealth transfer is present at the time the advice is given or the time the documents are signed.
2. Some or all of the instructions have come from the person taking advantage from the transaction.
3. The lawyer does not have a full understanding of the client’s overall asset picture, and is unable to assess or to discuss the extent to which it will impoverish them.
4. The lawyer has any prior professional relationship with the person taking advantage.
5. The lawyer has a past or current personal relationship with the person taking advantage (e.g., childhood friend, best friend of lawyer’s wife).
6. The lawyer is upon close scrutiny really acting for someone other than the client, or is acting in a joint retainer with the person taking advantage.
7. Any part of the fees are being paid by the person taking advantage under the relationship rather than by the client himself or herself.