LawPro recently released its report concerning Wills and estates malpractice claims as of the end of 2022.  As we approach the busy year end, I thought it would be helpful to remind practitioners of the most common errors and some risk management tips in that regard.

Interestingly (and perhaps somewhat surprisingly), most issues stem from things at occur before or at the initial client meeting. Things that contribute to problems that occur before the initial meeting include: failure to conduct a proper conflicts check; failure to provide the client with a questionnaire designed to elicit information about the nature of their assets and liabilities, marital status (and whether a spouse is a married or common law spouse), residency, citizenship, the existence of children or stepchildren (and their ages and their residence/citizenship); and failure to ask the client to provide copies of any existing will and domestic agreement.

Those that contribute to problems that occur at the initial meeting include appreciation of who is attending the meeting with the testator (and why), and the failure to make necessary inquiries that stem from the completed/partially completed questionnaire.

With an increasing number of elderly clients, coupled with a world now filled with virtual meetings, practitioners need to be even more vigilant in assessing capacity and undue influence. Ideally, the meeting with the client would be with the client alone (although the use of technology may inhibit this), and the questions asked of the client should be open-ended as opposed to directed, such that the lawyer is better able to assess the client’s state of mind.  Experience has shown me that sometimes the same question asked in a different way at different points during the meeting will elicit the same or different responses, which can be telling in and of itself. One also has to be cautious when there is a language barrier and reliance is being had on a person assisting with communication.

In terms of conducting inquiries (which can be emotionally charged and very private), my practice is to start by telling the client that I need to be a bit of a “nosy Nellie”, and that I trust that is acceptable. I find that often sets the tone, calms the client, and accordingly enhances my ability to ask probing questions. One such probing question is whether the client has any medical conditions. Another is why, if there is an existing will, the client is contemplating making a change. Asking the client about their particular family situation and the relationships among the family members can be helpful. The goals of the client are also key.

There is no “recipe” or “secret sauce” for conducting the meeting.  Rather, the lawyer needs to be perceptive, personable so as to gain the client’s trust in sharing information, and productive in terms of gathering critical information that will assist in the will production. All key information should, of course, be contemporaneously documented for the file. In today’s electronic world, scanned meeting notes can be helpful should later issues arise, as they can avoid transcription errors that can occur when notes are reduced to typewritten documentation.

But the information gathered, and the notes taken at a meeting, are not enough.  I can not tell you how many times I have asked a client how they hold title to property, and they confidently tell me one thing, but a title search reveals another. Where practicable, independent verification of information provided is important.

Now comes the task of reducing all of this information, together with the goals, to writing. And this needs to occur on a timely basis. It is also important to solicit expert advice in certain circumstances (for example, related to complex income tax matters).

We all know that doing or revising a new will is often motivated by impending surgery or travel. As the lawyer, it is important to understand timing expectations and to appropriately manage them. If the information isn’t forthcoming, I often close my meeting by asking if a mountain climb or a skydive is contemplated in the near future.

Once complete it is important to compare the drafted will with the client notes to ensure that something wasn’t inadvertently omitted. You want to avoid an assertion that you failed to deal at all with a critical asset. Or that you fail to ensure that all of the assets are ultimately dealt with in various scenarios.

Reviewing the drafted will a final time with the client to ensure that it reflects the expressed wishes is also key.  The will provisions can be complicated to understand for a non-lawyer, and I find it is helpful to draw out various scenarios and walk through them to ensure the client understands what will happen and when.  Akin to my “nosy Nellie” caveat, I will tell the client that “I apologize, but I have to draw an X through people” in order to demonstrate the various scenarios.

Once everything is complete, reporting to the client is critical. It provides an opportunity to reiterate your understanding of the situation and instructions (although ideally you will have already done so), but also to inform the client of circumstances where it is important to revisit a will.  One wants to avoid a situation where it is being asserted that “my lawyer didn’t tell me that I had to do that”.

Most of this blog is trite information, but it bears repeating. We all aspire to be cost effective and time sensitive, but this is where errors can occur.  One always has to be mindful of the fact that, in acting for a client on a will mandate, there may not, unlike many other legal documents, be an opportunity to address an error before it is too late.

Statistics are telling, and they are compiled for us to learn something from them.  We should all endeavor to do so.