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Can Technology Help Wills and Estates Practitioners Avoid Mistakes?

The abridged version of this blog was originally published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc. Part One was published on May 15, 2020. Part Two was published on May 19, 2020.

LawPRO claims against wills and estates practitioners in Ontario have been on an upswing in the last decade, nearly doubling in frequency.1  As litigators who often prosecute claims against lawyers accused of negligence, we have observed first-hand the types of mistakes that are often made by lawyers. These mistakes generally stem from a failure to stay informed about the relevant law and/or to adopt and follow best practices when carrying out their duties.

Increasingly, we anticipate that best practices will include utilisation of technical innovations. In this blog, we explore some of the ways in which such innovations may assist lawyers in avoiding malpractice errors and thereby reduce negligence claims.

Common Malpractice Errors

I. Inadequate Investigation and Lack of Communication

On average, sixty-one percent of claims against wills and estates lawyers are related to inadequate investigation and lack of communication.2 Common malpractice errors include:

  • Failure to ask sufficient questions to determine the testator’s assets;
  • Failure to ask about the existence of a prior will;
  • Not digging into more detail about the status of past marital relationships, children or stepchildren, or whether a spouse is a married spouse or common law spouse;
  • Failure to compare the draft will with the instructions or notes to ensure consistency; and
  • Failing to ensure that the client understands what the lawyer is telling them and vice versa, particularly if there is a language barrier.3

II. Errors of Law

Fifteen percent of malpractice claims against wills and estates practitioners arise from errors of law.4 Common errors include:5

  • Not being aware of key provisions of the Income Tax Act (and not obtaining the appropriate tax advice); and
  • Drafting complex wills involving sophisticated estate planning without the necessary expertise.

III. Clerical and Delegation Errors

Clerical and delegation errors make up eight percent of claims against wills and estates practitioners.6

Can technology help address common malpractice errors?

In our view, technology products can assist lawyers in avoiding many of the common errors outlined above. As a case study, we examined eState Planner, a recently-launched technology platform that helps lawyers and financial advisors deliver estate planning services for their clients. This platform was created by Jordan Atin, who worked with Ian Hull to scale it up.

How does eState Planner work?

eState Planner allows practitioners to collect key client information using a digital questionnaire that is completed by the client online. The portal allows practitioners to monitor the client’s progress as they complete the questionnaire and follow-up on items that require attention. Once completed, the information is available on the portal in an easy-to-read format. Information about the client’s family is converted into a family tree and a list of assets is provided and marked with the date of completion.

To create the estate plan, practitioners can implement instructions from clients in real time by dragging and dropping assets to create bequests. The client is able to see the implications of their decisions, such as tax payable or how a given bequest affects what assets are available for distribution to other beneficiaries. Advisor Alerts provide prompts with respect to various issues, such as a non-resident attorney or a missing gift-over provision. This part of the process can be conducted over videoconference or in-person. The consultation can also be recorded using videoconferencing software.

The final part of the process is to generate the documents required by the client, such as wills or powers of attorney. This is done automatically by the software. The software can also generate easy to understand graphic and text summaries of the client’s will.

How can technology like eState Planner protect against malpractice claims?

Technology like eState Planner, if used properly, has the potential to reduce the occurrence of many of the errors cited above that often lead to negligence claims. This is because the platform transforms the process by which an estate plan is created from the traditional method whereby a lawyer consults with the client, asks a series of questions, and later drafts the required documents using the notes from the consultation, into one whereby the lawyer and client create the estate plan together in real time and the software can actually record the interaction.

I. Sufficiency of Investigation and Communication

The effectiveness of communication between lawyer and client is greatly improved using software like eState Planner, because the client is able to view the plan in visual form as it is being created, rather than simply reviewing a densely worded legal document after it has been drafted. The client and lawyer are also prompted by eState Planner to conduct an appropriate investigation into the relevant facts forming the basis of the estate plan as they fill out the initial questionnaire.

Moreover, in the event that a malpractice claim is commenced, eState Planner provides protection for the lawyer should he or she decide to record the consultation during which the estate plan is created using a videoconferencing service. This video recording would show the lawyer acting on the client’s instructions, probing into any areas of concern as prompted by the Advisor Alerts, and walking the client through the various implications of their instructions. This would arguably provide more compelling evidence that the lawyer acted in accordance with the standard of care than a traditional reporting letter and/or notes. It would also, possibly, help address some of the indicia of knowledge and approval, including:

  1. The testator’s level of understanding of the dispositive provisions of the will,
  2. The hearing of the testator,
  3. The comprehension of the testator, and
  4. Whether there was someone else in the room influencing the decision.

Clearly, this method is not foolproof.  It will not guarantee that the lawyer asks appropriate questions covering the full range of necessary areas that have to be covered. It will not indicate whether someone is outside the vision of the frame who is prompting the testator to give certain answers or is otherwise unduly influencing the testator. It also may not assist in determining if the testator is suffering from delusions.

II. Does it eliminate Errors of Law

While software like eState Planner is not a substitute for a lawyer’s responsibility to apprise themselves of developments in their area of law, it does provide a measure of protection against potential errors of law through its Advisor Alerts, which are specific to each client’s particular circumstances. These alerts are constantly updated according to changes in the case law and legislation, and provide warnings when certain actions may trigger tax owing or create other unintended consequences. For example, among many others, the system will alert the lawyer to inquire as to whether other wills have been previously executed by the testator,7 whether the testator is engaged to be married,8 whether administrative powers are appropriately limited to maintain qualifying trust provisions under the Income Tax Act,9 whether a transfer may be subject to the presumption of resulting trust set out in the Pecore decision,10 etc. These prompts are helpful, but they will not relieve the solicitor from his/her duties to probe and verify the information provided.

III. Does it eliminate Clerical Errors?

The likelihood of clerical errors is greatly reduced using software like eState Planner, as client information is not being transcribed by the lawyer after being relayed orally by the client, but rather directly inputted into the portal by the client and then reviewed by the lawyer. The documents that are generated by the software will exactly reflect the information entered, which largely eliminates human error with respect to spelling, paragraph numbering, etc.

Limitations of Technology

While tools such as eState Planner can provide a powerful means of mitigating common errors, they are no substitute for a lawyer’s skill and judgment with respect to certain areas of concern.

I. Capacity and Undue Influence

While eState Planner has Advisor Alerts which prompt practitioners to make appropriate inquiries into clients’ capacity and the potential for undue influence, the software does not and cannot replace a lawyers’ judgment with respect to these issues and how to ask questions and follow-up questions to try to ensure capacity and absence of undue influence. Lawyers must continue to take necessary steps to satisfy themselves that clients possess the requisite capacity to execute testamentary documents and are not subject to undue influence, which requires them to ask the right questions in fact specific ways and potentially delve deeper into the answers they get.

II. Language Issues and Legal Delusions

Wills are sometimes challenged because the testator’s knowledge of English is limited, and while the testator may have had capacity s/he may have not had the language skills to understand the dispositive provisions of the will.  There are also times when testamentary decisions are rooted in an illness or legal delusion which may provide a reason to set aside the testamentary document. Technological innovations are of limited assistance in such situations. Lawyers must use their own judgment to identify and deal with these issues.

III.  Formalities of Execution

Lawyers using technological tools in their wills and estates practice should continue to be mindful of the formalities of execution required under the Succession Law Reform Act.11

Conclusion

As described in the foregoing, as litigators, we believe that wills and estates solicitors may find existing technological innovations useful in mitigating common malpractice errors.  Tools such as eState Planner can address many of the issues that often lead to malpractice claims by keeping lawyers and clients quite literally “on the same page” as an estate plan is created, thereby improving communication. In addition, alerts provided by the platform may be of assistance in preventing errors of law. But, there is a limit to what technology can do to insulate lawyers from negligence claims. Solicitors must continue to use their training and common sense, as well as the latest and greatest software tools, to ensure that down the road they can satisfy disgruntled beneficiaries and judges that they did their job competently.

 

Footnotes
  1.   https://www.practicepro.ca/practice-aids/claims-fact-sheets/wills-estates-malpractice-claims-fact-sheet/
     
  2.   https://www.practicepro.ca/wp-content/uploads/2020/04/Wills-and-Estates-Claims-Fact-Sheet.pdf
     
  3.   https://www.practicepro.ca/wp-content/uploads/2020/04/Wills-and-Estates-Claims-Fact-Sheet.pdf
     
  4.   https://www.practicepro.ca/wp-content/uploads/2020/04/Wills-and-Estates-Claims-Fact-Sheet.pdf
     
  5.   https://www.practicepro.ca/wp-content/uploads/2020/04/Wills-and-Estates-Claims-Fact-Sheet.pdf
     
  6.   https://www.practicepro.ca/wp-content/uploads/2020/04/Wills-and-Estates-Claims-Fact-Sheet.pdf
     
  7.   Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII) is instructive on the implications of failing to make appropriate inquiries as to whether prior wills exist.
     
  8.   This is relevant to whether the will is being made “in contemplation of marriage” – see section 16(a) of the Succession Law Reform Act, R.S.O. 1990, c. S.26.
     
  9.   R.S.C., 1985, c. 1 (5th Supp.)).
     
  10.   Pecore v. Pecore, 2007 SCC 17
     
  11.   Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 3-4.
     
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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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