How to determine Solicitor’s Negligence
A Will requires the service of a lawyer in order to make it official. However, there may be situations where a lawyer does not adequately perform their job. In these situations, a lawyer may be found negligent.
What is Solicitor’s Negligence?
Solicitor’s negligence is a phrase used to describe a lawyer’s failed duty of care towards their client. A lawyer owes a duty of care to their clients and must act in the client’s best interest.
Behaviour that defies a lawyer’s duty of care includes a lawyer drafting a Will that does not accurately reflect the testator’s (the person who the Will is for) wishes; drafting a Will for someone and not checking to see if they had the capacity to understand the contents of the Will, and not confirming whether the testator was under undue influence in writing their Will.
How do you know if the solicitor was negligent?
To determine negligence, there are certain things that a court will look at. The first is the source of liability for negligence. For example, a source could be the duty of care that a lawyer owes their client. For a lawyer to be found liable for negligence, a standard of care must also be violated. It must be shown that the lawyer’s error was one that another competent lawyer would not have made.
The lawyer’s action is measured against how other lawyers provide services within the same area of law. Further, the standard is reasonableness, not perfection. There are six factors that are used to consider whether the lawyer acted reasonably in preparing the Will:
- The terms of the lawyer’s retainer
- Did the client cause any delay
- The importance of the Will to the testator
- How complex was the Will preparation
- Anything that could indicate the testator not having the requisite capacity
- Whether there has been a reasonable ordering of the lawyer’s priorities
The last component is whether the lawyer’s conduct caused the client’s loss and they suffered damages.
Can someone other than the testator make a claim for solicitor’s negligence?
Generally, in the context of estates, a person who is not the testator cannot make a claim for solicitor’s negligence.
There is an exception: the “disappointed beneficiary.”
A disappointed beneficiary is someone whom the testator intended to include in their Will, but as a result of the lawyer’s negligence, was not included in the Will. This means that the lawyer’s duty of care can extend beyond their client and to a beneficiary.
Is there a time limit to make a claim?
In Ontario, there is a limitation period on making a legal claim against someone. The limitation period is two years after the claim was first discovered. A claim is discovered on the earlier of. The date the claimant knew or ought to have known about the claim. In estate challenges, this is likely after the death of the testator.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.