Taking Instructions and Testamentary Capacity

Taking Instructions

Will makers must always conduct an assessment of mental capacity when taking will instructions.

In 1992 I was Plaintiff’s counsel in the decision Mikita v. Lick. The action involved a 10 day trial, in which I succeeded in setting aside a will and transfer, prepared by a notary, whereby an elderly gentleman bequeathed his entire estate to his housekeeper. My client incurred legal fees and/or disbursements approximating $80,000. I then sued the notary for recovery of all of those fees and disbursements. Adrian Chaster, on behalf of your Society did an excellent job in settling the case for $40,000. Were I to bring the action today, I would not have settled for that amount.

The trial Judge made the following comments about the notary in his Reasons for Judgment:

“No notes of this meeting were made by the Notary. He says he advised the deceased of the contents and the meaning of the documents and “he appeared to me” to understand. No background was gone into as to prior wills, size of the estate and those things a lawyer would be bound to look to or which, I would suggest, an ordinary cautious and prudent person would look to when faced with the circumstances here. It is argued that he is not a lawyer and his actions should not be judged by legal standards. That may be so but we are not judging his actions here, we are looking at the deceased’s competence and his evidence, because of the lack of any in-depth enquiry, is not helpful in that area one way or the other. No attempt was made to assess his capacity. We knew the deceased was not well but he did not ‘probe minds’. No wills check list was used. The reasons given was that these things were not done in the case of a “simple will” which he maintains this was. He says that if he has any concerns regarding capacity in such cases he would always turn the person over to a lawyer but the fact remains that he had the documents all drawn up ready for signature before he ever had the deceased into his office. In the witness box he almost apologetically said that he trusted and relied on M. With respect he relied on a weak reed in this instance – she also had done only a most superficial examination. When it was suggested that, in effect, he ‘rubber-stamped’ the provided documents after a most perfunctory inquiry he said little.

I am satisfied that his interview with the deceased was as cursory as was hers and he ignored the obvious and did not question the suspicious. The deceased may have appeared to know what was going on but I am satisfied, and future events proved, that he did not. When the documents were completed the bill was prepared by M and she filled out a cheque for the deceased to sign which he did. That signature alone is enough to give one pause to consider the capacity of the signer.”

Three tings may be obvious to you so far from this introduction, namely:

That legal fees are recoverable by the executor for solicitor negligence in the preparation of a will where it is subsequently found that the testator lacked sufficient capacity ;

That the notary failed to conduct an in-depth enquiry, take notes, follow a will checklist, etc., because this was a case of a “simple will”;

That it was argued that the notary’s action should not be judged on the same basis as that of a lawyer;

I urged each and every one of you to never consider the preparation of any will to be that of a “simple will”. In my view there is no such thing as a “simple will”. Each and every will is potentially fraught with problems and potential liability.

With respect to liability for notaries, I am sure you are all aware of the decisions of Flandro v. Mitha 1993 D.L.R. (4th) 222, and Crowe v. Bollong (unreported) March 19th, 1998 BCSC.

The Flandro case held that a notary owed a Plaintiff a duty of care equal to that owed by a solicitor.

In the Crow v. Bollong case, a notary was successfully sued for professional negligence in drawing up a will which failed to provide for a discretionary trust for a handicapped daughter, that he ought to have known might lose her entitlement to G.A.I.N. by reason of this negligence. The Court specifically found that the notary had no authority to draw a will that included trust provisions.

I draw your attention to Section 18(b) of the Notaries Act which states, inter alia, as follows:

(b) draw and supervise the execution of wills

(i) by which the testator directs the testator’s estate to be distributed immediately on death,

(ii) that provide that if the beneficiaries named in the will predecease the testator, there is a gift over to alternative beneficiaries vesting immediately on the death of the testator, or

(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;

2. TAKING INSTRUCTIONS

I do not purport to be an expert on the taking of instructions from a testator.

However, I do attach hereto to my paper the Law Society of British Columbia Practice Checklists Manual for Will Procedures and the Testator Interview. You will see that it is substantial in detail and I urge you to follow the gist of the Checklist on each and every meeting with your clients where applicable.

The taking of instructions in order to determine whether a client has sufficient mental capacity to properly give you instructions, is a matter of considerable difficulty and extreme importance. I suspect that the potential liability and the importance of determining mental capacity on the part of many solicitors and notaries, is not clearly appreciated or understood.

In determining mental capacity, what is first and foremost to the lawyer should be the probing of the testator’s mind by asking detailed and insightful questions, such as many of those provided in the aforesaid Checklist.

The following is a review of case law where the Courts have reviewed the conduct of solicitors in preparing wills, as they may relate to the issue of mental capacity, and where the courts have approved or suggested :

(a) It is essential to probe the mind with regard to the testator’s assets, beneficiaries and background. The ability of a testator to recall his assets and his appropriate beneficiaries is a very important test of both capacity and memory;

(b) If you have any doubt at all as to the mental capacity of the testator, then it is important to obtain a medical opinion as to same. I go so far as to say that notaries may not in fact have the statutory authority to prepare a will for a testator where capacity is suspect, by reason of the powers set out in Section 18 of your Act. I submit to you that in all of those circumstances the matter should be referred to a lawyer rather than attempting to handle the matter yourself. When obtaining a medical opinion it is very important to carefully advise the doctor as to what the test for mental capacity in fact is, as many doctors do not properly understand same. If at all possible, the doctor should attend at the execution of the will and be one of the witnesses. Request the doctor to make a detail note to the chart regarding his or her observations of capacity. Try and have the doctor conduct his medical examination as to capacity at or very close to the time that the will instructions are given.

(c) Always take instructions in the absence of potential beneficiaries or executors;

(d) Question the testator as to whether or not he or she has made recent sizeable inter vivos gifts to any person;

(e) Make detailed notes of all of your more important questions and the client’s answers, including a specific comment on the capacity of the client;

(f) Be very aware of potential suspicious circumstances;

(g) Record detailed reasons why any person who would be an appropriate object of the the testator’s bounty is being omitted from the will, and if so, consider the preparation of a detailed memorandum to the will in conjunction with your notes;

(h) If at all possible, previous wills should be reviewed in an attempt to ascertain whether or not there have been substantial changes and why ;

(i) Determine as a whole whether the will is reasonable given the testator’s circumstances? If not, consider why this is so;

(j) Try and keep the wording of the will as simple as possible, particularly when your client is seriously ill, elderly, illiterate or has a language or mental disability; ( ie avoid words such as issue or per stirpes , and instead use words like child)

(k) Keep detailed notes and file contents preserved indefinitely.

In 1996 I had occasion to conduct perhaps the world’s shortest cross-examination of a lawyer who prepared a will. He has 25 years experience, and advertises weekly that he is an experienced estate lawyer. I showed the lawyer the Law Society Checklist which I previously referred to, and asked the lawyer if in fact he did one single item on that entire list. He stated that he did not and I then sat down. The effect was dramatic to the trial judge.

That lawyer failed to even meet the testator, took instructions from the sole beneficiary, and simply gave that beneficiary the will to be signed with a letter (incorrectly) stating how to have the document executed. I am sure that no one here today would ever do such a thing.

3. STANDARD OF CARE FOR SOLICITOR NEGLIGENCE

The Supreme Court of Canada stated in Central and Eastern Trust Company v. Rafuse [1986] 31 D.L.R. (4th) 481 at 523 that :

“A solicitor is required to bring reasonable care, skill and knowledge to his performance of the professional service which he has undertaken”.

The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.

In Jacobsen Ford-Mercury Sales Ltd. v. Sivertz 1980 W.W.R. 141, it was stated:

” A lawyer is obliged to act as a “prudent solicitor” and must “bring to the exercise of his profession a reasonable amount of knowledge, skill and care in connection with the business of his client”. There is no liability for mere errors in judgment because a solicitor does not undertake not to make mistakes but only not to make any negligent mistakes. The determination is said to be a question of degree, and there is a borderline between negligence and no negligence: see Linden Canadian Tort Law 1977 pp. 108 – 109.”

I again remind you that notaries are under the same standard of care as that of lawyers.

4. WHAT IS TESTAMENTARY CAPACITY ?

Each and every one of has undoubtedly made a somewhat snap decision upon meeting a client for the first time, that we have no reason whatsoever to question that client’s mental capacity. The client appears to be dressed appropriately, and to act appropriately, and to be able to converse extremely well, at least on a superficial level.

In my submission it is a very serious mistake to prepare wills for clients, and make the assumption that your client has sufficient mental capacity to properly instruct you. I in fact urge you to approach the situation from the exact opposite mind set , and almost assume that your clients lack mental capacity until you are satisfied, after probing their minds sufficiently, that they do in fact have sufficient mental capacity.

I strongly recommend to each and every one of you when you are taking will instructions, that you bear in mind that some day you may be asked under oath in open Court just what exactly were your observations about the deceased’s capacity at the time you took your will instructions.

Banks v. Goodfellow 1870 LR 5 QB 549, is the legal chestnut relating to the test for mental capacity. The case finds there must be 4 criteria, namely:

(i) the testator understands that he is making a will and that a will disposes of property upon his death;

(ii) the testator must know the assets he disposes of, that is, he understands the nature and extent of his property;

(iii) the testator understands and appreciates the claims to which he ought to give effect, that is, those who have an appropriate claim upon his bounty;

(iv) the testator must be free of delusions which may affect his decision.

In Leger v. Poirier 1944 3 D.L.R. 1 (SCC) Justice Rand, speaking for the Supreme Court of Canada, said that a “disposing mind and memory” is:

“capable to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revocation of existing disposition, and the like”.

The time honoured phrase is that a person must be of “sound mind, memory and understanding” in order to be able to make a will. When a will is contested on the grounds of mental incapacity, the executors must prove that the testator had a sound disposing mind. This means that they must show that the testator was not only able to understand what he was doing, but that he was able to comprehend and recollect what property he had and remember the persons that he might be expected to benefit. He must understand as well, the extent to what he is giving to each beneficiary and the nature of the claims of others to whom he is excluding.

The relevant time for having capacity to make a will is when instructions are given. If a person has capacity then, he may make a good will later, so long as he knows he is executing a will for which he has previously given instructions and is physically capable of showing his assent thereto. Parker v. Fellgate (1883) 8 P.D. 171

However the Courts will not require such a high degree of proof that it would make it almost impossible to prove testamentary capacity. In Laramee v. Ferron 1909 43 SCR 391, at page 409, it was stated:

“We must be careful not to substitute suspicion for proof. We must not by an extensive doing so render it impossible for old people to make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to described, yet the testamentary capacity be ample.

To deprive lightly the aged thus afflicted of the right to make a will, would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comforts and tenderness as old age needs.”

It should also be stressed that even “somewhat crazy” people may also still have testamentary capacity. The Supreme Court of Canada in O’Neil v. Royal Trust and McClure 1946 SCR 622, stated that the testatrix had sufficient capacity, even though she heard voices from beyond the grave, and smelled gas in her room and thought that her food was being poisoned, on the basis that her hallucinations did not influence her motives in making the will.

5. WHAT IS THE SOLICITOR’S DUTY TO DETERMINE CAPACITY

There is a clear duty imposed on lawyers and notaries when taking instructions, to be satisfied that the testator has testamentary capacity, that the testator has knowledge of and approves the provisions contained in the will, and that there is no apparent coercion or undue influence being exercised on the testator. This duty is enhanced where the testator is frail, elderly or the instructions are taken from someone other than the testator.

There are innumerable decisions where the Courts have been very critical of certain lawyers in the preparation of a will and the taking of instructions.

One of the better known decisions is Re: Worrell 1971 OR 184, where the Judge stated at pages 188 and 189:

“I consider it necessary in this action to comment on the conduct of the solicitor who drew the Will that is at issue. The solicitor impressed me as an honest, conscientious person, and yet on his own evidence he acted as set out hereunder:

(a) he prepared a will for a testator for whom he had never acted and whom he never saw and knew the testator concerned was 82 years of age and confined to a home for the aged,

(b) he drew the will without any knowledge of the size of the testator’s estate or the nature of its assets.

(c) he drew the will leaving a substantial portion of the estate to the person who consulted him,

(d) he drew the will with changes from the original letter of instructions signed by the testator without any consultation with the testator,

(e) he handed the will to the beneficiary who had consulted him, to take out and have executed,

(g) he kept no docket entries or other records dealing with the matters in issue.

It seems incredible that a competent solicitor, the head of a respected law firm, would act in this manner. It seems even more incredible that he gave no indication in the witness-box which would indicate that he realized he had acted improperly.”

I also refer you to the decision of Johnson v. Pelkey 17 E.T.R. (2d) 242, as a case that might be cited as being a decision for ” what a lawyer should not do”. Mr. Johnson was the lawyer who took instructions, and applied to court to prove the will in solemn form. The following quote is one a few paragraphs made by the Judge in criticizing Mr. Johnson’s conduct, namely:

” Mr. Johnson believes Mr. Pelkey was not wearing glasses when he came to execute the will on October 23, 1992. He did not ask Mr. Pelkey about his health or who his doctor was. He did not ask about medications. He asked no questions specifically intended to determine mental capacity, memory or even orientation to time and place. He asked no questions to determine if Mr. Pelkey had testamentary capacity. He testified that he assumed Mr. Pelkey knew what his assets were. He did not ask Mr. Pelkey if any of his children had died, or if any of them were under a disability. He assumed that Mr. Pelkey’s beneficiaries continued to be the children listed in the Affidavit of Administrator sworn by Mr. Pelkey after Nellie Pelkey’s death, although that list did not include Bernard Pelkey’s name. He did not ask about the financial situation of any of the beneficiaries. He asked no questions about Mr. Pelkey’s income. He didn’t ask if Mr. Pelkey wanted any of the gifts in the will to go to the grandchildren if any of Mr. Pelkey’s children predeceased him. He referred to the various parcels of land by their legal descriptions but he didn’t ask Mr. Pelkey if he understood which parcel of land was which. He assumed that Mr. Pelkey knew. He didn’t ask Mr. Pelkey about the value of his assets. He didn’t ask him how much money was in his bank account, he assumed it was around $100,000. He does not recall explaining what an executor was and he did not discuss executor’s fees.

Lastly, in Danchuk v. Calderwood Mr. Justice Harvey criticized the solicitor who took instructions of the will, in many paragraphs, one of which is as follows:

“In this perspective, I understand the law to be that a solicitor does not discharge her duty in the particular circumstances here by simply taking down and giving expression to the words of the client with the inquiry being limited to asking the testator if he understands the words. Further, I understand it to be an error to suppose because a person says he understands a question put to him and gives a rational answer he is of sound mind and capable of making a will. Again, in this perspective, there must be consideration of all the circumstances and, particularly, his state of memory.”

6. SUSPICIOUS CIRCUMSTANCES

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone, supra, noted at p. 456-7:

When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.

(my emphasis)

Mr. Justice Lambert referred to that passage and explained the meaning of the term “suspicious circumstances” in Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.):

It is important to recognize that the “suspicious circumstances” referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavory may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will.

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion. The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator. In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations, and the notes preserved.

A short list of the innumerable circumstances in which might be suspicious is as follows:

  • where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
  • where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;
  • where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
  • where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
  • where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
  • where the will substantially deviates from previous wills;
  • where a gift is made to a person standing in a fiduciary relationship;
  • where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;
  • where you receive the testator’s instructions from someone other than the testator;
  • Where there has been a recent serious illness or hospitalization;
  • where there is any question at all about testamentary capacity;
  • where there are indications of substantial medications that are potentially mind altering, being used;
  • where there is a hasty or unwise marriage or common-law relationship;
  • where there is evidence of depression;
  • where there is a language/cultural disability or illiteracy;

if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

In circumstances where the testator has a will and substantial changes are being made, it would be prudent to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, you should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act, and enclosing a copy of that signed memorandum with the original will. You should try and insure the accuracy of the information, so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.

INDEPENDENT MEDICAL ADVICE

As I previously stated, I am of the view that notaries should not attempt to undertake the preparation of wills where they have any concerns whatsoever about the testator’s capacity, and instead should refer the matter to a lawyer. Having said that, if you wish to proceed, and you have any concerns about the testator’s capacity or the circumstances are such that you believe that others may challenge capacity at the time the will is attempted to be probated, then you should refer the matter to a qualified doctor for the purposes of obtaining a medical certificate as to whether or not the client has sufficient mental capacity to prepare a will. That medical advice should be as current as possible to the actual time that the will instructions are given.

It should also be pointed out that many doctors do not actually understand what the true legal test for mental capacity is, and thus you should in your request of the doctor, set forth the 4 criteria as previously stated in Banks v. Goodfellow.

Medical evidence is not required to prove capacity, nor is it necessarily conclusive when it is given. Generally speaking, a testator is presumed to have sufficient mental capacity to execute a will, unless there are suspicious circumstances present, which then reverses the onus of proof on those who propound the will.

There have been a number of Court cases where the evidence given by eye witnesses who had an opportunity to observe the client and who knew the client, have been accepted over the expert medical testimony to the contrary.

In the recent decision of Rossander v. Rossander, Mr. Rossander attempted to argue that Mrs. Rossander lacked sufficient mental capacity to execute a will and divorce settlement agreement made between themselves. The medical evidence of Dr. Sloan, was that she was absolutely unable independently to manage her finances at the crucial time, and was absolutely unable to understand in any detail the significance of the legal document or power of attorney or any matter to do with transfer of property, and was further probably unable to form the consistent intention required for testamentary capacity, etc.

Nevertheless, the Court accepted the evidence of the handling lawyer, together with other lay witnesses, over the expert medical testimony.

I personally find the decision troubling, but it is not the only decision where lay evidence has taken precedence over expert medical testimony.

LIABILITY OF A SOLICITOR

There are essentially 2 areas of liability which I wish to focus on in this part of my paper, namely:

the liability for legal fees and other consequential damages arising out of the negligence:

In the Supreme Court of Canada Goodman Estate v. Geffen 42 E.T.R. 97, the Court awarded the appellant its full reimbursement for their actual and reasonable costs, including legal fees incurred in defending the respondent’s law suit. The Court stated that it has long been held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the cost of an action, reasonably defended.

It is the writer’s experience that the cost of an estate litigation trial can be very expensive, frequently taking 2 weeks or more, and often involving many experts such as doctors. The cost for legal fees alone can be a substantial claim for damages, if there has been solicitor’s negligence in causal link to the damages. Pursuant to the aforesaid decision of Geffen, and other decisions, the executor would be able to sue the negligent lawyer or notary, for full reimbursement of actual and reasonable costs including legal fees.

the liability owed to “disappointed beneficiaries”.

In 1978, Justice Atkins, in Wittingham v. Crease and Company 3 E.T.R. 97, found the lawyer negligent in having a spouse of a beneficiary witness the will. This in turn caused that bequest to fail, and the solicitor was liable in damages for negligence to the “disappointed beneficiary”, in an amount being the difference between what the beneficiary received on an intestacy and what the beneficiary would have received after a successful application under the Wills Variation Act.

The following year, our Court of Appeal followed Wittingham (supra), and in Tracy v. Atkins 16 B.C.L.R. 223, found that despite the fact that the Defendant’s solicitors did not represent the Plaintiff, a lawyer could be liable to an opposing party if he or she placed themselves in a “sufficient relationship of proximity”, that he or she incurred a duty of care towards the Plaintiffs.

Thus, the B.C. Courts in the late 70’s began to allow recovery on the basis of the principle. The principle of that case is that if a person seeks information from a person possessing a special skill and trust, that person to exercise due care and if that person knew or ought to have known that reliance was being placed on his or her skill and judgment, he or she owes a duty of care to the first person. Further, absent express disclaimer of responsibility, the first person can recover damages for financial loss caused by the negligent misrepresentation, where spoken or written, of the second person.

Again in 1979, the British Court of Appeal in Ross v. Caunters, followed Wittingham and found liability against a lawyer to disappointed beneficiaries, where the lawyers had drafted a will, forwarded the will to the testator for execution, but failed to properly ensure that a beneficiary did not witness the will. A beneficiary in fact did witness the will and was successful in a claim against the lawyer for damages for the loss of the benefits under the will.

Probably the current high watermark of solicitor’s liability to disappointed beneficiaries is the House of Lords decision of White v. Jones (1995) 1 All E.R. 691.

In that case a testator had a law firm prepare a will where he disinherited 2 daughters. He subsequently reconciled with his daughters and wrote a letter on July 17th to his lawyers requesting that they prepare a new will with a specific gift to each of the 2 daughters. The law firm never did prepare the will prior to the testator’s death on September 14th. The 2 daughters brought an action for negligence and recovered their loss from the lawyers.

The majority of the House of Lords held that Hedley Byrne cannot properly give rise to a tortious liability. There is no duty of care other than to the client, and Hedley Byrne ought not to apply in cases of pure economic loss, and there is no “loss in not receiving a gift”. In the result, the House of Lords fashioned a new basis for a remedy based on a concept of “transferred loss”, that is since the deceased cannot take action against the solicitor for breach of the retainer, the right to do so was treated as transferred to the beneficiary.

It would appear that this White v. Jones approach gives rise to the argument that liability to the beneficiary is necessarily limited by the terms of the contract of retainer of the solicitor.

The following excerpt from the decision pretty well sums up this area of law, namely:

“The very purpose of the employment of the solicitor is to carry out the client’s wish to confer a particular testamentary benefit on the intended beneficiary. There is no other purpose. If the solicitor negligently fails to achieve that purpose, justice requires that there should be some remedy available”.

The recent British Columbia decision of Smolinski v. Mitchell, 10 B.C.L.R. (3rd) 366, also involved an action against a lawyer where there was delay in carrying out the client’s instructions to prepare a will.

The testator in fact intended to leave a bequest to the solicitor, and the solicitor therefore advised the testator he would have to get independent legal advice and complete the execution of the will elsewhere. The lawyer drafted the will, delivered it to the testator, and left it to the testator to arrange to get independent legal advice. The testator however died before the will was ever executed, and the residue was distributed on an intestacy.

The Court absolved the lawyer from any liability on the basis that the lawyer here had a duty to ensure that the testator obtained independent legal advice. The delay, and possibly the non-execution of the will occurred because of the Defendant’s advice that the testator obtain independent advice and execute the will before an independent lawyer. In the unusual circumstances, there was no duty of care owed by the Defendant to the Plaintiff to see to the expeditious execution of the will. It could not be said that the Defendant failed to take reasonable care to ensure that the testator met with and received advice from an independent lawyer.

I have heard of a California decision where liability was found against a solicitor who took four days to draft a will for a patient who was very ill and in the hospital. The patient died before the will was executed and the disappointed beneficiaries succeeded against the lawyer. I have no reason to believe that this case would also succeed in British Columbia, although it would depend on the degree of illness of the patient, as to whether four days was a reasonable period of time.

In Hickson v. Wilhelm (September 26, 1997)(Sask. Reg. No. 554), the Plaintiff was an employee of the testator, and the Defendant were lawyers retained by the testator. The testator retained the lawyers to incorporate a farming operation and some of the testator’s assets included farm land were transferred to the corporation, although the testator retained bare legal title to the land. He later drafted a will by a lawyer who was a member of the law firm that incorporated the farm. The testator left the land to the Plaintiff and after his death, the land bequest failed because the corporation owned the land despite the fact that it remained registered in the testator’s name. The land was sold and the proceeds were distributed to the residual beneficiaries of the will.

The Court found that the Defendant solicitor who had prepared the will was negligent in that he did not meet “the requirement for due diligence in this case with the result that the role and involvement of the corporation and the ownership of the farm assets was not identified in the bequest of land to the Plaintiff as expressed in the will were ineffectual and failed”.

The Court found that the facts warranted a conclusion that the testator bore a degree of responsibility for the instructions which he gave the lawyer, and attributed a 25% liability to the testator, and 75% to the lawyers. The liability aspect is under appeal.

I think it is somewhat unlikely that disappointed beneficiaries would bring a claim against a solicitor or a notary with respect to the issue of mental capacity, but it is certainly possible, and I wish you to be aware of the existence of these types of claims. I can foresee circumstances where the wills practitioner may be instructed to prepare a will, then take an inordinate period of time to have same executed, during which time the testator suffers a stroke, head injury, mental illness, etc., which renders the testator mentally incapable of executing the will. However, since the relevant time for mental capacity is the time that instructions are taken, it is probably less likely to occur than in situations where the testator dies in the interim.

7. CONCLUSION

I am mindful of the advice given by Stuart Cameron of P.L.I. Claims, the insurers for lawyers in the Province of British Columbia, to follow the 3 a’s, that is:

  • ask;
  • advise;
  • act.

I am sure that many of the cases and practice notes that I have set out in this paper will be somewhat alarming and even disturbing to many of you with respect to your potential for liability.

However, I stress that if you use a checklist when interviewing your client, both to limit the possibility of missing an important question and to record not only your client’s instructions, but your observations concerning important issues such as capacity and others, then you will go a long ways to limiting any potential liability against yourself. Always be aware that you need to probe your client’s mind in order to really try and get at whether or not your client has sufficient mental capacity to properly give you will instructions. For difficult will instructions situations, consider taking another colleague or even your legal assistant with you at the time you take your instructions. This is particularly important where you are taking instructions at the testator’s home or at a hospital, or nursing home.

Lastly, always confirm and record your instructions and advice.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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