Preventing claims – Wills and estates
The following is a summary of Lawyers as executors: Traps and tips, Insurance Issues: Risk Management, Summer 2016.
Are you about to accept the role of executor and trustee? Based on our claim reports, the role is often not as simple or straightforward as you may think. If you say yes, appreciate that you are about to take on obligations that may be quite foreign to you.
Here are the tips that you can follow to avoid falling into the traps that have caught other lawyers who ventured forth, ill-prepared (read more for details, and for the real-life scenarios from our claim files involving lawyers acting solely as executors). And remember to double check that you’re insured, as this may influence your decision to accept the role or decline (read more at Executors, trustees and other fiduciaries.) And if there are potential for significant losses flowing from any successful negligence claim buy excess insurance.
Before you accept the role:
- Don’t assume that just because you’re a lawyer that you know what it takes to be an executor
- Make sure that you know the duties you’re taking on
- Recognize that some breaches of statutory duties will expose personally
- Appreciate that your responsibilities qua fiduciary are very different than those qua lawyer
- If you don’t have time to properly meet your obligations, decline
- Remember that you can’t avoid responsibilities simply by accepting a co-trustee role
If you accept the role:
- Recognize duties that you aren’t comfortable discharging without assistance
- Manage the expectations of beneficiaries
- Be clear as to what role you are taking on – executor or lawyer
Shift in the onus of proof under new legislation
The following is a summary of Undue influence: onus of proof, best practices, Insurance Issues: Risk Management 2012, Winter.
The law in relation to undue influence is changing for wills practitioners. The Wills, Estates and Succession Act, in force along with its probate rules March 31, 2014, introduces a shift in the onus of proof in relation to undue influence challenges to wills in some cases. The Act will govern probate of a will if the will-maker dies after it comes into force, regardless of when the will was prepared.
Someone may challenge a will or a provision in it, alleging that it does not reflect the true wishes of the will-maker, but is the result of undue influence by a third party. If established, the will or provision is void. Currently, the onus of proving undue influence affecting a will always falls to the challenger. Section 52 of the Act reverses that onus, in certain circumstances. This shift in onus may result in an increase in undue influence challenges.
If you drafted the will in question, expect to be called as a witness in the ensuing litigation, compelled to testify about the facts and circumstances surrounding the making of the will and to produce your file, including notes. If you failed to take reasonable steps to ensure the will reflects the will-maker’s genuine wishes, or did not keep adequate notes, you may be at risk. For help in recognizing and dealing with situations of potential undue influence, see the best practices guide and reference aid now available (see below).
Originally appeared in Undue Influence? How to decide and what to do, Practice Watch, Benchers’ Bulletin, Fall 2012
Are you concerned that your client may be vulnerable to undue influence by a relative, friend, caregiver, acquaintance, clergy member, accountant or other person? Are you aware that mentally capable clients can be subject to undue influence, as well as persons whose mental capacity may be impaired? Would you recognize the red flags of undue influence and know what steps to take to deal with it? Refer to the BC Law Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide.
The guide is intended to assist lawyers and notaries recognize and deal with situations of potential undue influence when drafting wills, but it can also be applicable when preparing other personal planning documents, such as powers of attorney and representation agreements, and to transfers of property and various other common transactions, including gifts, loans and guarantees between family members and acquaintances.
The guide includes red flags and guidelines, as well as a reference aid (checklist, red flags and a flow chart of recommended practices). We have a limited supply of the reference aid in brochure form available to lawyers by request (while supplies last). Please email your request, along with your name and address, to firstname.lastname@example.org.
The following is a summary of What you need to know about changes to adult guardianship legislation, Insurance Issues: Risk Management, Fall 2011.
Lawyers practising in the adult guardianship, estate planning and elder care areas should familiarize themselves with the changes introduced by the Adult Guardianship and Planning Statutes Amendment Act, 2007. The Act makes fundamental changes to various statutes relating to adult guardianship, enduring powers of attorney and elder care in British Columbia. Some of these changes came into effect on September 1, 2011, although other sections of the Act are not yet proclaimed.
The changes may expose unwary lawyers to negligence claims in relation to:
- Acting as property guardians or attorneys (changes pending), or
- Preparing or executing enduring powers of attorney ( changes in force)
|The Representation Agreement Act that allows an "adult" to give a person or persons (the adult's "representative") authority, by means of a representation agreement, to make both financial and health care decisions for the adult, came into effect in February 2000. A summary of the important issues we raised for lawyers at that time follows. As the Act was amended September 2011, the summary should be read in that context.|
The following summarizes The Representation Agreement Act, Alert!, October 2000
Any practitioner who advises on matters relating to incapacity, who engages in estate planning or who counsels third parties (such as financial institutions) on how to deal with matters involving incapable persons and their financial affairs should be familiar with the provisions of the Act and related adult guardianship statutes and should be aware of the concerns relating to the Act, some of which are (read more for details):
- Can you act for more than one party to the agreement?
- Execution formalities
- Section 7 agreements
- Section 9 agreements
- Anti-delegation rule
- Duty to consult
Updated information about incapacity planning is available on the Attorney General’s website at www.gov.bc.ca/ag.