While it may be difficult to avoid litigation, when an elderly parent prefers one child in their estate plan over others, the case law does provide some guidance for solicitors acting for clients.
Imagine a client comes into a lawyer’s office and instructs the lawyer to draft a will. The lawyer makes a mistake and one of the beneficiaries in the previous will who was supposed to inherit some money in the new will got left out. Does that beneficiary have a right to sue the lawyer? Let’s take a look at the law.
Let’s look at the Alberta case of Meier v. Rose to see how the Honourable Madam Justice J.H. Goss addressed the issue of whether lawyers who draft wills are negligent for failing to verify ownership of property? In this case the lawyer (Mr. Rose) prepared a will for a long time client (Gary Meir). The client demanded that it be done the next day. Gary wanted to leave some farmland to his brother (Bob). The lawyer asked for the legal description of the farm land and in accordance with Gary’s instructions the farmland was left to his brother. But the gift failed.
This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar I have found very useful which I believe are worthwhile to review.
Anneta Sguigna, an 86-year-old immigrant to Canada, spoke very little English. She hired an Italian-speaking lawyer and told him to make a Will giving all her assets to her son Fred. The Will was signed, but no one translated it for Anneta before execution. The court accepted that the Will was drafted in accordance with her instructions. Arguably, since Fred was the only surviving son, the Will made logical sense. The court accepted that Anneta knew and approved of the main provision of the Will: that all her money was to go to her son Fred.
Seventy nine year old Bruce Bennett was on his deathbed and Mark Frederick was the lawyer called to the hospital to prepare a new will. Bennett wanted to leave money to Peter Hall. Bennett was quite lucid when conscious and capable of giving simple directions, but he could not deal with issues like his net assets, debts or the exact value of his property or bank accounts. During the interview with the lawyer, Bennett could only stay awake for a few minutes at a time. He could not remember the full extent of his estate and was not alert enough to review or sign the will. The lawyer did not believe Bennett had the capacity to make a will and accordingly never agreed to open up a file and would not take a retainer. That night Bennett died and Peter Hall received no money from the estate. He sued the lawyer.
Have you ever wanted to disinherit your spouse? In Makan v. McCawley  O.J. No. 1206 a Mother had enough of her husband. She called her lawyer and instructed him to make sure that all her assets would be inherited only by her children and grandchildren. Mother and her husband owned certain property together as Joint-Tenants. In this type of ownership the one who lives longer automatically becomes the owner of the whole of the property. For the testator's children and grandchildren to inherit this property, the lawyer had to change the type of ownership to Tenants in Common so that each spouse's interest could be left to anyone the testator wishes in his or her Will. Since the estranged Husband was the executor and sole beneficiary under the old Will, the Lawyer had to draft a new Will which excluded the spouse and named the new beneficiaries.