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Pay Attention to What You Pay For

It is fairly rare for judges to directly criticize lawyers in written decisions relating to estate matters, at least in my experience. When I do run across it, it sends a strong signal because there is usually an important lesson in the criticism. The judge's displeasure with the lawyer who drafted the will at the centre of a recent Saskatchewan case in Kohlman Estate, 2018 SKQB 133, therefore stands out.

Briefly, this was an application for advice and directions by the executors of the Estate for assistance with interpreting the deceased's Will. The deceased died with a will and was survived by his 10 children. A few months later, one of his children also passed away. The Will had a provision that delayed the final distribution of the Estate for, what was determined to be an arbitrary period of, 15 years. The issues revolved around the deceased child's estate entitlement to a share of the father's estate after the expiration of 15 years.

The Court commented that in the vast majority of cases, cases involving judicial interpretation of a Will are usually the result of poor drafting. Within that subset of cases, the author of the poorly drafted Will is usually the deceased him or herself who prepares the document without legal advice. In Kohlman Estate, the deceased had the benefit of legal advice, though the value of that advice was seriously questioned by the Court. The judge placed much of the responsibility for the family discord on the drafting solicitor, stating at various times:

  • "As a general comment the court cannot help but notice in this case how sloppily the will was drafted."
  • "The court has concluded probably not and the omission of an i) was just another example of the inattention that was given to the preparation of the will by counsel for Alphonse Kohlman."
  • "The sloppiness in the preparation of this will culminates with the second last paragraph of the will which is the root cause of the resultant uncertainty as to the intent of Alphonse Kohlman when he made his Last Will and Testament. If not uncertainty, complete confusion."
  • "The clause makes no sense, either alone or in conjunction with the rest of the will."
  • "These clauses appear to be mere afterthoughts as opposed to clauses incorporated into a preferred well-constructed will that logically sets forth the intentions of the testator"

The Court made note of several other inaccuracies, including the description of the deceased's son as his daughter.

Anecdotally, I was recently involved in a litigation file where the ambiguities in the Will created by the drafting lawyer were also heavily criticized by the judge (and were the direct cause of tens of thousands of dollars of legal fees), and observed a matter in Court a few months ago where the judge's frustration with the dispute caused her to comment in open court that the parties should have sued the drafting solicitor for the issues arising from the poor drafting.

As a lawyer who assists clients with estate planning matters, I'm certainly aware that misdescriptions of family members and typos can occur in the drafting process. However, the Kohlman case highlights two major points for clients and for drafting solicitors:

  • As a client, it is important to pay attention to the quality and nature of the services you are paying for. You can do this by considering your professional advisers carefully. It is an increasingly complex world, and individuals' estate planning needs often require more than the "all to spouse, then to children" drafting. Therefore, if you have a blended family, business interests or inter-jurisdictional issues, for example, I strongly suggest that the lawyer preparing your Will has estate planning as a significant part of their practice. You can also look for additional indicators, such as professional designations like TEP (Trust and Estate Practitioner), publications and speaking engagements about topics related to estate planning or an active membership in organizations such as the local estate planning council or an equivalent.
  • The case is a reminder to estate planning lawyers that they have potential liability to disappointed beneficiaries, particularly if litigation or unnecessary legal fees result as a direct consequence of sloppy drafting as a result of inattention or lack of familiarity with the area of law. If you plan to have a significant estate planning practice there are many great resources that allow you to keep up with developments in the law which should not be overlooked.

If you have any questions about resources to help you find an appropriate lawyer, or how to expand your involvement with wills and estates (at least in Canada), feel free to contact us.

Thank you for reading!