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Sunday, June 15, 2014

A disappointed beneficiary can sue a lawyer who makes a will-drafting error

Sometimes it appears to the family left behind that the deceased's will simply did not say what they thought the deceased meant it to say. It may seem that something important was left out, with the result that someone who logically should have inherited is left out in the cold.

What can be done? What if it was the fault of the lawyer who drew up the will and left out that important element?

A reader recently wrote to me about a family situation just like this. His question and my response are as follows:

"My brother died, with a will leaving his estate to his "kids" equally. One of his "kids" was his biological daughter, a minor, and the other was his stepson, an adult. Should his lawyer at the time not have pointed out that in order for his stepchild to inherit, my brother would have to name him in the will? We now have a situation where the daughter who was hostile and estranged from her father for several months preceding his death is likely to inherit all his assets while his stepson who maintained a relationship with his stepfather and was there for him in the months leading up to his death, left out of any inheritance whatsoever. If the stepson, who was not adopted by my brother cannot challenge the will, what about suing the lawyer who drew up the will neglecting to counsel my brother on the ramifications of not naming his stepson?"

You are correct that when a will refers to "my children", it includes all biological children, but does not include step-children who have not been adopted.

It is definitely possible to sue a lawyer who doesn't follow his client's instructions, or doesn't draft the will in a way that will carry out the client's instructions. It's also possible to sue a lawyer who does such a sloppy job that he or she doesn't even ask the client the right questions, such as whether any of the children are step-children, or whether the client wants to include a step-child in the will.

There are plenty of cases out there that prove that a person we'd call "a disappointed beneficiary" can win against a lawyer. These are many cases where the disappointed beneficiary was not the lawyer's client, but can sue successfully because they would have inherited money had the lawyer done his or her job right.

It is essential,  however, for you to realize that you are working on a very big assumption. You are assuming that what you think is fair is what your brother intended to do in his will.

It's possible that the lawyer did counsel your brother as to the effect of the will, but that your brother decided to proceed this way anyway. I know it seems unlikely from where you stand, with your feelings about the relationships between the people involved, but it's a matter of proof.

The answer as to what your brother intended well may lie in the notes the lawyer took while interviewing your brother. I certainly hope so anyway, though not all lawyers are good at keeping notes. In a trial, these notes would come to light. They likely wouldn't be the only evidence, however. Verbal testimony from people who had talked with your brother regarding his intentions might also be admissible.

In my view, there is a case to be made for the step-son, assuming that there is evidence available. He should find a lawyer who is experienced in wills and estates, as this will be complex litigation. He needs to talk about what evidence is available, what it will cost, and who will pay those costs. He might also discuss with the lawyer whether there is anything to be gained by making a complaint against the first lawyer to the provincial Law Society, since lawyers carry insurance.

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