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Are lawyers who draft wills negligent for failing to verify ownership of property?

Let’s look at the Alberta case of Meier v. Rose((Meier v Rose, 2012 ABQB 82.)) 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.

Garry’s company owned the farmland and the shares of the company were bequeathed to another beneficiary.  Should the lawyer have probed and verified who owned the farmland?  Did Mr. Rose owe a duty of care to the deceased’s brother who was the intended beneficiary?  If the client said the farmland belonged to him what obligations, if any, did the lawyer have to verify?

Madam Justice J.H. Goss reviewed the law.((See paragraphs 16 through 28 of the Meier case.  As well, for those interested in the law of Ontario, I refer the reader to McCullough v. Riffert, 2010 ONSC 3891; Brian Schnurr, Estate Litigation, 2nd ed., 21 — Solicitors’ Negligence in Estate Matters;  Ian M. Hull and Suzana Popovic-Montag, “The Standard of Care and Will Drafting – The Nature of the Retainer and its Impact on the Duty of Care in Estate Matters”, presented at the 12th Annual Estates and Trusts Summit Day 2 – November 13, 2009;  Kimberly Whaley, “Solicitor’s Negligence in the 21st Century: A Trusts and Estates Perspective”; Kimberly Ann Whaley, “Solicitors Negligence in Will Preparation, What are Courts saying in 2007”, March 2007; Stephen M. Grant and Linda R. Rothstein, Lawyers’ Professional Liability, 2nd ed. Toronto: Butterworths Canada Ltd, 1998; CED Barristers and Solicitors 473 (Western) – X – Negligence by Lawyer 1. Duty of Care (c) – Duty to Third Parties Case Law; Kaptyn Estate, Re, 2008 CarswellOnt 6071; 43 E.T.R. (3d) 219; Hall v. Bennett Estate, 2003 CarswellOnt 1730, 15 C.C.L.T. (3d) 315, 171 O.A.C. 182, 64 O.R. (3d) 191, 227 D.L.R. (4th) 263, 50 E.T.R. (2d) 72; Rosenberg Estate v. Black et al., 2001 CarswellOnt 4504; X (an Infant) v. Woollcombe Yonge, [2001] 274 Lloyd’s Law Reports, Part 3 Chancery Division; Earl v. Wilhelm, 2000 SKCA 1, 183 D.L.R. (4th) 45, [2000] 4 W.W.R. 363, 189 Sask. R. 71, 216 W.A.C. 71, 31 E.T.R. (2d) 193, 1 C.C.L.T. (3d) 215, 4 W.W.R. 363; Smolinski v. Mitchell [1995] B.C.L.R. (3d) 266; White v. Jones, [1992] 1 All E.R. 692 (HL); Gartside v. Sheffield, Young & Ellis, [1983], N.Z.L.R. 37 (C.A.); Whittingham v. Crease & Co.;  Whittingham v. Crease & Company, 78 CarswellBC 456, [1978] 5 W.W.R. 45, 6 C.C.L.T. 1, 3 E.T.R. 97, 88 D.L.R. (3d) 353. )) Her Honour confirmed negligence is established when, in the circumstances of the retainer and relationship of the deceased, the lawyer fell below the requisite standard of care expected of the reasonably competent solicitor.  It is important to note that the plaintiff in this case was not the client.  The plaintiff was the deceased’s brother who was a third party beneficiary.  As Her Honour stated, “the standard of care owed by a solicitor to a third party beneficiary pursuant to a common law duty of care created by the retainer to prepare a will for the testator cannot be greater than that owed to the testator client in carrying out the testator’s instructions for conferring the benefit on the third party.”

The plaintiff argued that the lawyer was negligent having in mind that he knew the testator had used a corporate vehicle to hold title to some of his land. Accordingly, Bob’s lawyers argued that the standard of care was breached by Alex Rose because he failed to be skillful and careful:

  1. by neglecting to ask his client who was  the registered owner of the farm land, and
  2. by failing to conduct a title search to determine ownership of the land.

The judge found the lawyer to be negligent.  In her view, “In receiving instructions for the preparation of a will, a solicitor is entitled to place an appropriate degree of reliance upon the client and the information he provides, having regard to all the circumstances of the engagement. However, a solicitor is not relieved from the responsibility to ensure that his instructions are complete and sufficiently accurate in law or otherwise so that the work undertaken by solicitor on behalf of a client will achieve the intended result. The standard of care goes beyond simply recording the testator’s wishes and preparing the will, without anything further, in circumstances where the reasonably competent solicitor should be alert to the need to clarify certain information…. I am satisfied that a reasonably competent solicitor ….. retained to prepare a will for a client for execution the following day, who knew that the testator has used a corporate vehicle to hold title to some of his land and who was familiar with his client’s tendency not to distinguish between his personal and corporate ownership of land, would take the step to ascertain ownership in preparing a legal document such as a will by conducting a title search on the legal descriptions provided. A reasonably competent solicitor in those circumstances would, at a minimum, have asked who owned land to be gifted in the will or done a search to ascertain in ownership.”

It’s important to remember that not every mistake constitutes negligence.  Even the plaintiff’s expert acknowledged that not “… every solicitor must conduct a title search whenever land is bequeathed in a will.”((Please see paragraph 43 of the Meier case.)) This is a very short, simplified blog on one case which addressed some very complex technical issues.  It is not meant to be legal advice.  If the reader of this blog is looking for directions on whether there are sufficient grounds to prove  negligence in court, nothing  replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

Charles Wagner

The author of this blog is Charles B. Wagner. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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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