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

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 whether… Read more

Court Costs Awarded Against Lawyer Personally

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

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 Same For Lawyers and Notaries

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 paragraph 232…. 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

Wills Lawyer Liable For Damages to Intended Beneficiary

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