Avoiding Communications Claims in Wills & Estates Law

AuthorDan Pinnington
DateJanuary 19, 2015

No matter what the area of practice, the number one source of claims at LAWPRO is a breakdown in communication between the lawyer and client.

Between 2008 and 2013, nearly 4,600 communications claims – an average of 762 a year – have been reported to LAWPRO. The total cost of these claims to date is about $158 million – and likely to rise as more recent years’ claims are resolved.

In the Fall 2011 issue of LAWPRO Magazine we asked LAWPRO claims counsel with expertise in the various areas of law to provide insights into the communications mistakes they see in their daily handling of claims files. We hope this approach makes it easier for you to implement risk management steps in your own practice.

Cynthia Miller, unit director and counsel (PPL), Deborah Petch, claims counsel (PPL), and Pauline Sheps, claims counsel specialist (PPL) review the kinds of communication errors we see in wills,
estates and trusts practice.

Ask questions – many questions

The biggest communication issues take place at the time the will is being drafted. The claim may result from drafting errors, but often it was poor communication that led to the drafting error.

Too many lawyers, says Martin, are not truly listening to the client’s instructions and not probing and questioning the client to uncover facts that may cause problems later.

“It’s not so much the client not providing the information as the lawyer failing to communicate what the lawyer needs to know,” says Martin. “For instance, the client says: ‘I want to leave everything to my son.’ Fine, but does she have any other children? What did the prior will say?”

Are the beneficiaries identified correctly? (e.g., there is more than one St. John’s Church in the city.) Did the lawyer ask about gift-overs in the event that a beneficiary is not alive at the time the testator dies? When the will drafting is complete, lawyers should do a reporting letter to the client so that there will not be confusion in the future about why changes were made, which beneficiaries added or removed, and so forth.

LAWPRO has seen in an increase in claims resulting from lawyers failing to ask about client assets when drafting wills. Too many lawyers don’t ask the simple question: “What assets to do you have?” (Given how many people in Ontario now come from other jurisdictions, lawyers should be asking about assets on a worldwide basis.)

It’s equally important to discuss how these assets will be distributed. This issue often arises in the case of second...

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