January 23, 2014

There are unique challenges faced by estates and trust practitioners when taking estate planning instructions. Estate planning is something that most folks are reticent to do in the first place – for many, it languishes on a list of “should do’s” for some time before something – a pending divorce, a scheduled plane trip, a pregnancy – forces it to the surface. It can be a very personal and sensitive exercise, touching as it does on a testator’s relationships, duties and obligations in the context of often complex family dynamics and troubled family histories.

The duty of a lawyer, according to the Supreme Court in Central Guarantee v. Refuse is “to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken.” To whom does the lawyer owe this duty? Estates law is complicated by the fact that while the testator is the only client, the very point of drafting a will is to benefit persons other than the testator. And, in most cases, an error will not be discovered until after the client’s death. The first part of this paper will examine recent developments in the case law regarding a lawyer’s duty to persons other than the lawyer’s own client when drafting a will or power of attorney.

The requisite standard of care, according to Refuse, is variously referred to as “the reasonably competent solicitor”, the “ordinary competent solicitor” and the “ordinary prudent solicitor”. While a full review of the case law interpreting the standard of care is beyond the scope of this paper, the second part of this paper will review some of the most recent decisions which have considered whether a lawyer’s actions met the requisite standard of care.

Read the full paper here: Update on Solicitors’ Negligence Issues by Angela Casey