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Friday, May 17, 2013

A lawyer's duty to beneficiaries

An area of wills law that's vitally important to beneficiaries and lawyers alike is the question of whether a lawyer who is drafting a will owes any kind of duty of care to beneficiaries. When these cases come up, the problem is usually what we call a "disappointed beneficiary", or in other words, a person who didn't get what they expected from the will.

Generally speaking, there is no responsibility from the lawyer to the disappointed beneficiary, but that's not always the case.

Usually if a lawyer drafts a will for Mr. Smith, the lawyer's responsibility is to make sure that he or she makes a will that properly reflects Mr. Smith's wishes. As long as the lawyer does that, it's not the lawyer's problem if someone expected to inherit something from Mr. Smith, but did not. Things change when the lawyer fails to prepare a will according to what Mr. Smith wanted.

It happens. In fact earlier today I met with clients whose current will sets up a spousal trust with a gift over to specific beneficiaries. I asked why they chose to do that. They replied that they had never wanted a spousal trust and didn't even realize that was in the will. This could have been a problem for the drafting lawyer if the error had not been discovered in time to change it.

I'm attaching a very good article from lawyer Chris Staples in which he reviews a recent case from Ontario that dealt with the issue of the lawyer's responsibility to beneficiaries. Click here to read it.



2 comments:

  1. Hi Lynne,

    I have an executor's lawyer fee question and was unable to find one of your posts for this topic so I posted it here.

    I am a beneficiary of an Ontario Estate and have received a Release. In the Distribution Summary the executor's lawyer listed his fee. I believe this fee is high for the amount of work he has done. I have worked with the Executor for the majority of resolution.

    I asked the Executor’s Lawyer to provide the invoice for his charges and he told me I am unable to receive this information as it is confidential between him and the executor. As the residuary beneficiary I thought I was privy to all information. Could you please inform me if I am entitled to receive an invoice with accompanying minutes / seconds for services rendered or is he correct in stating this is private information only him and the executor are allowed to know.

    Thanks

    Chris

    ReplyDelete
    Replies
    1. Hi Chris,
      I think what the lawyer means is that he can't be the one who tells you anything because he works for the executor, not for you. You are entitled to receive this information directly from the executor.

      Lynne

      Delete

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