February 16, 2010

It has been said that the “worst part” about practicing law is dealing with clients. A rather harsh assessment, but it is likely trite to say that advising a client is never straightforward or easy. No doubt, most lawyers can recount the trials and tribulations of successfully representing their clients (the truly difficult client is a whole other matter).

Advising a client can get particularly murky in the world of estates where a lawyer has been appointed the executor under a will, but continues to provide legal services to the estate. Furthermore, during the course of the administration of an estate, a lawyer often assumes the dual role of estate trustee and estate solicitor either by accident or design. It is therefore critical that a lawyer handling or assisting in the administration of an estate be cognizant of the distinct roles of an estate trustee and an estate solicitor. In being mindful of the distinction, a lawyer must strive to avoid any overlap of roles and shy away from outright usurping the role of the estate trustee.

Tellingly, the courts have been consistent in highlighting the different roles a lawyer may play in the administration of an estate and steadfast in holding lawyers to account. Moreover, a lawyer who is involved, directly or indirectly, with the administration of an estate must be aware of: (1) what constitutes a breach of trust by an estate trustee: (2) ensure that he/she does not facilitate a breach of trust; and (3) what to do when faced with such a breach of trust.

Read the full paper here: Representing the Estate Trustee by Justin de Vries and Diane Vieira