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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.





3 comments:

  1. While there would be an error in a lawyer omitting someone who was to be included as beneficiary, isn't the onus on the testator to review the draft will, and sign in acceptance only once verified that will document is in complete compliance with the testator's directions and wishes?

    In the example provided, if the 6th person was not named, would that not indicate that person had been excluded by the testator even if the will did not specify the exclusion directly?

    Since a signed and dated will is the official means to convey the testator's wishes after death, I anticipate other documents except the lawyers actual notes, would not prove the testator's last will was not in conformance with the testator's directions. Even if there was a list of wishes prepared by the testator prior to meeting in private with the lawyer, changes in direction could still have been given during that meeting.

    Perhaps the testator indicated prior to death that their will is not as they had wanted, but the question then arises, why did the testator sign it without the appropriate corrections being first made?

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    Replies
    1. Hi Mark,
      I wish I could say that every testator picks up on every error, but it does happen that things get past them. Sometimes people don't read carefully enough. Sometimes the testator is under the impression that a correction has been made when it hasn't.

      You raise a good point, and I'm sure that if this was a case in court, that point would be raised by those defending the will.

      When wills are being prepared, there is always a bit of back and forth between the lawyer and the client, and often there is more than one draft. This is because sometimes testators DO decide to drop person #6 even though they first included them. I sincerely hope that the lawyer drawing the will made a note in the file saying this.

      One of the first things that happens when there is about to be a lawsuit over a will is everyone takes a look at the lawyer's notes. If there is a note saying that the testator intended to drop person #6, obviously that person has no case against the will or against the lawyer. But if the notes all say that person #6 was supposed to be included and was not included, you sometimes end up in a courtroom with the judge having to decide exactly what you just asked - why did the testator sign it that way? Was it a mistake by the lawyer or by the testator? Or was it a mistake at all?

      Lynne

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    2. Lynne,

      Thank you for taking time to reply.

      You said: "... everyone takes a look at the lawyer's notes." From this I question, is taking and retaining notes required by all lawyers, or is it simply an individual practice chosen by some?

      If notes are a professional requirement, I anticipate a lawyer could not destroy notes which prove he/she did commit an error, and then claim no notes existed.

      While you said testators sometimes do not pick-up on every error and some do not read carefully enough, that would seem to suggest at least some portion of blame for an error committed by a lawyer is transferred to the testator.

      Although there is usually an element of trust between client and lawyer, that trust should not replace a testator's responsibility to thoroughly read, question and verify the accuracy of their will document before signing it.

      I expect, even if a lawyer caused an error during the preparation of a will, that does not necessarily make it a certainty the lawyer will be deemed 100% responsible for any negative outcome of that error.

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