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Tuesday, April 2, 2019

What can I do if I lose my inheritance because a lawyer made a mistake when drawing up a will?

Yes, it happens. We lawyers do occasionally make mistakes. Whether the mistake is a result of being too busy, sloppy office practice, or just taking our eyes off the road for a moment, errors can be made in wills. What if you believe a lawyer made a mistake in a will that has cost you your inheritance? It's pretty well known that if your lawyer has made a mistake that has cost you money, you can complain to the Law Society. But that's not available if the lawyer who made the mistake wasn't your lawyer. Is there anything you can do, given that it wasn't your lawyer who made the will?

Yes, there is something you can do.

Most of the time, a professional of any kind who makes a mistake is only accountable to his or her own client. Other people don't have any claim against the work that a dentist or accountant, for example, do for their clients. Usually that's true for lawyers, too, but in the case of a will, there is an exception.

If you would have received something under a will if the lawyer had done the will the client asked for, you can claim against the lawyer.

Keep in mind that I am not talking about you wishing you'd been included in a will. I'm not talking about a will being done that you think is unfair and you should have been included in it or should have had a bigger share. If the testator made a choice to leave you out, that's not a mistake; that's just unfortunate for you and there is (usually) no claim you can make.

This post is about a lawyer not preparing the will that the client wanted. For example, the client might have given a list of 6 people to get a gift under the will, but only 5 names made it into the will. If you're that 6th person, you're out your share because of a mistake and you're entitled to sue the lawyer to get it. At that point, you might look into rectification of the will without suing the lawyer, but that's a post for another day.

A very common example of a mistake by a lawyer is taking too long to prepare a will. Let's say the testator gave instructions for a will that left a large bequest to his favourite charity then left the rest among his children. The lawyer was busy and 6 months later the will hasn't been drawn up but the client has had a fatal heart attack. The charity that would otherwise have received a gift now has the right to sue the lawyer for the failure to complete the will in a timely manner.

Another example is a lawyer who makes a will for a client who doesn't have the mental capacity to give will instructions. A person who would have inherited had the new will not been made might have a case against the lawyer. This is a pretty tricky one, since lawyers such as myself will give clients the benefit of the doubt unless it's absolutely clear that they simply do not understand what's going on. Capacity, or lack of it, is a judgement call. Most of the time, when a will is in question because of lack of mental capacity of the testator, the focus is on the will and a court will determine whether it's valid or not. That generally fixes the issue so that there are no longer any potential beneficiaries who have lost out because of the invalid will. However, in some circumstances there might be a case against the lawyer.

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