With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later!

PART 2 - Standard of Care

The second installment in this series examines the standard of care by which a lawyer's conduct is measured.

General Rules

First, let's look at some general rules. The standard of care is a question of law;1 2 whether the lawyer has met that standard is a question of fact.3 4 To measure the lawyer's standard of care or to define the nature of the lawyer's duty, the law uses the general standard of a reasonably competent lawyer.5 6 A lawyer will not necessarily be negligent simply because they are ignorant of the law; t ignorance will only give rise to liability where it can be shown that a reasonably competent lawyer would not have acted under it. If the standard of a reasonably competent lawyer is insufficient to respond to a known risk, then the law will require the lawyer to meet a higher standard, and provide services that do respond to the risk.7 And, while it is not the lawyer's duty to know the contents of every statute, there are some statutes that they are duty-bound to know.8

The Estates Context

In the estates context, the duties of a will-drafting lawyer are to inquire into the testator's capacity and carry out the testator's true intentions.9 10 There are certain circumstances that will require the lawyer to take additional measures to ensure that the testator's true wishes are being expressed and that such wishes will be protected and upheld. The circumstances include:

  1. an elderly testator;
  2. a testator who has suffered significant ill health, particularly if the condition, the disease, or required medication could affect the mental stability or general mental outlook of the testator;
  3. a testator who is unwilling to provide the lawyer with full information relating to the assets, liabilities, or family condition and circumstances;
  4. the disposition of the estate is one that would generally be viewed as being unusual in the context of the objective circumstances of the testator;
  5. a beneficiary of the will has been particularly involved in assisting the testator with the preparation of the will; and
  6. the dispositions set out in the will represent a drastic departure from the terms of the former will.11

A lawyer must inquire into these unusual or suspicious circumstances. A lawyer will not have discharged their duty by simply taking down and giving expression to the client's words, and limiting the inquiry to asking the testator if she understands the words.12 Courts have described lawyers who operate in this manner as "comparable to that of a parts counterman or order taker."13 A reasonably competent lawyer ought to meet with the testator alone14 and make a serious attempt to determine whether he or she has capacity.15 The lawyer ought to ask questions that determine, to the extent possible, whether the testator understands the extent of his or her assets.16 The lawyer ought to keep good notes.17 If there is any possible doubt or reason to suspect that the will may be challenged, the lawyer should keep a memo or note of these observations.18

A lawyer may be found negligent for one or all of the following:

  1. the failure to obtain a mental status examination;
  2. the failure to interview the client in sufficient depth;
  3. the failure to properly record or maintain notes;
  4. the failure to ascertain the existence of suspicious circumstances;
  5. the failure to react properly to the existence of suspicious circumstances;
  6. the failure to provide proper interview conditions (e.g. the failure to exclude the presence of an interested party);
  7. the existence of an improper relationship between the lawyer and the client (e.g., preparing a will for a relative); and
  8. failing to take steps to test for capacity.19

Undue Influence

A drafting lawyer has an obligation to ensure as clearly as possible that the testator is fully aware of the circumstances and the consequences of their actions, and that there is no undue influence. Where there are indications of undue influence, the lawyer must exercise an extra degree of care and inquiry in terms of the testator's interests, intentions, and understanding.20

Look for Part 3 of this series, which will cover Causation, to be published on September 21, 2020. To read Part 1 of this series, which examines the duty of care owed by a will drafting lawyer to his client and to third parties, click here: https://www.mindengross.com/resources/news-events/2020/09/08/back-to-school-solicitors-negligence-duty-of-care

Footnotes

1. Fellowes, McNeil v. Kansa General International Insurance Co. (2000), 138 O.A.C. 28 (Ont. C.A.) http://canlii.ca/t/1vd44 at para. 11

2. Krawchuk v. Scherbak, 2011 ONCA 352 (Ont. C.A.) http://canlii.ca/t/fl99f at para 125

3. Wong v. 407527 Ontario Ltd. (1999), 179 D.L.R. (4th) 38 (Ont. C.A.) http://canlii.ca/t/1f9rh at para 47

4. Cited with approval in King Lofts Toronto I Ltd. v. Emmons 2013 ONSC 6949 (Ont. C. A.) http://canlii.ca/t/g67xn ("King Lofts v Emmons"), at para 57

5. Central & Eastern Trust Co. v. Rafuse 1986 Carswell NS (S.C.C.) at para 66

6. Folland v. Reardon (2005), 74 O.R. (3d) 688 (Ont. C.A.) http://canlii.ca/t/1jn07 ("Folland v Reardon") at paras 43 and 44

7. King Lofts v Emmons at para 59

8. Glivar v. Noble (1985), 8 O.A.C. 60 (Ont. C.A.) at para 29

9. Graham v Bonnycastle 2004 ABCA 270 (Alta. C.A., leave to appeal refused) http://canlii.ca/t/1hq66  at para 28

10. Hall v. Bennett Estate (2003), 227 D.L.R. (4th) 263 (Ont. C.A.) http://canlii.ca/t/78r5 at para 22

11. Brian Schnurr, Estate Litigation, 2nd ed., 21 - Solicitor's Negligence in Estate Matters

12. Danchuk v Calderwood 1996 CarswellBC 2555 (B.C. Sup. Ct.) http://canlii.ca/t/1f357 ("Danchuk v Calderwood") at para 118

13. Ibid at para 209

14. Walman v Walman Estate 2015 ONSC 185 (Ont. S.C.J.) http://canlii.ca/t/gg3jq ("Walman v Walman Estate") at para 55

15. Scott v Cousins 2001 CarswellOnt 50 (Ont S.C.J.) ("Scott v Cousins")   at para 70

16. Walman v Walman Estate at para 55

17. Ibid at para 55

18. Scott v Cousins at para 70

19. M.M. Litman & G.B. Robertson G.B. on "Solicitor's Liability for Failure to Substantiate Testamentary Capacity" (1984), 62 Can. Bar Rev. 457, cited with approval in Hall v. Bennett Estate at para. 26.

20. Hussey v Parsons 1997 CarswellNfld 349 (Nl. Sup. Ct.) http://canlii.ca/t/fwvkx at paras 633 and 635

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.