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In the practicePRO Lending Library: Through the Client’s Eyes

July 28, 2014 By: TimLemieux Category: Law Practice Management

Clients Eyes
Every time we shop, eat, travel or visit a web page, it seems the company we deal with wants to know how their service was and how they can do better. So why don’t law firms ask this question more often?

Henry W. Ewalt’s book Through the Client’s Eyes, sets out to make the case that they should, from both a business perspective and in terms of lawyers’ job satisfaction. His book demonstrates that by treating clients like people rather than cases, lawyers can develop more profitable (financially and personally) relations with clients.

A review of this book from LAWPRO Magazine can be found here.

The practicePRO Lending Library is a free resource for Ontario lawyers of more than 100 books on a wide variety of law practice management related topics. You can see a full listing of our books here. You may borrow a book in person or via e-mail.

The practicePRO Library is located in our office at 250 Yonge Street, Suite 3101 in Toronto and can be visited during our regular business hours (Mon to Fri, 8:30 to 5:00). We invite you to come by anytime (please email in advance)to peruse our selection. All titles in the practicePRO Lending Library can be shipped to Ontario lawyers at our expense, and returned at yours after three weeks.

If you would like to borrow this or any other book please email us. Most of our titles are also available from the American Bar Association Web Store or the major booksellers here in Canada.

Business loan collection scam using the name Johnny Lee

July 28, 2014 By: FraudInfo Category: Confirmed frauds

An Ontario firm notified us that they received an email from the purported Johnny Lee looking to retain them with regards to a breach of a business loan agreement.

This is a classic bad cheque scam that presents as legal matter requiring the assistance of a lawyer. In this scam lawyers will be duped into wiring real funds from their trust accounts after depositing a fake cheque received as payment from the debtor (who is part of the fraud). See our Confirmed Fraud Page for more of an explanation of how these frauds work and other names associated with it , and our Fraud Fact Sheet for a list the red flags of a bogus legal matter that is really a fraud.

Here is the initial contact email sent by the fraudster to the lawyer’s intake site, and subsequent reply:

From: JOHNNY LEE johnnylee1277@gmail.com
Date: Mon, Jul 28, 2014 at 9:55 AM
Subject:
To:

Dear Counsel,
I am inquiring about the possibility of your firm representing me in a breach of payment agreement litigation.
If this falls within the scope of your practice get back to me. I will also need a referral if this is not your line of practice.
Thank you as I look forward to your response soonest.

Regards,

Mr. Johnny Lee

How to handle a real or suspected fraud Read the rest of this entry →

Independent but engaged: Support networks for solos

July 25, 2014 By: Nora Rock Category: Uncategorized

There are plenty of good reasons for choosing sole practice, or for transitioning into sole practice after practising with a firm. You may have chosen to practise in a small community; you may have opened a sole practice because you couldn’t find the right fit with a firm in your chosen area of practice; or you may be a person with a naturally independent work style and a desire to be your own boss. Whatever a lawyer’s reasons, sole practice is a choice that can be profitable and personally rewarding.

Practising solo, however, presents special challenges. From a risk management perspective, it can be more challenging, because lawyers who practise alone lack colleagues close at hand with whom to discuss tricky legal issues. From a business perspective, it means that you alone are responsible for bringing in business; and business development activities take up precious time that you would otherwise spend doing the work that earns you money. Finally, from the perspective of life satisfaction and mental health, sole practice can be isolating.

With a small investment of time and energy, lawyers who practise alone can mitigate all of these risks by building a support network.

Make connecting with peers a priority

When you are trying to build a new business, it can be tempting to spend your days holed up in your office, working hard at “marketing” during the gaps between client matters. But making the effort to introduce yourself within the broader legal community will make marketing easier in the long run, and will ensure that you don’t fall prey to the pitfalls of isolation.

Conversely, if your practice is well-established, you may feel that you are “too busy” to interact with your peers. This can be a mistake, because if you let your relationships with other lawyers fade away, it can be harder to find help when you need it – for example, if a health or family crisis forces you to take unexpected time off.

Meet your “senior partners”

Perhaps the most important category of connections new sole practitioners can make are with lawyers who have many years of experience. These lawyers are likely to be especially valuable to you as mentors.

Because successful and established lawyers are busy, it may take some effort to cultivate relationships with them; but lawyers who take the time to seek out mentors are often pleasantly surprised at their senior colleagues’ willingness to help. One way to build relationships with potential mentors is to make referrals, either of an entire client matter, or, where possible, an issue related to a client’s matter that is outside your current comfort zone, but is something you’d like to learn to do. For example, if you draft wills but have never dealt with the intergenerational transfer of a farming business, you might refer the file to a more experienced lawyer, but ask for the opportunity to review the finished will (with the client’s consent, of course) and to speak with the other lawyer about the issues.

You may also be able to gain a mentor by making yourself available as a backup to another sole practitioner – for example, by agreeing to file documents and receive courier packages when the lawyer is away, or to appear on his or her behalf to seek an adjournment should a last-minute conflict come up.

The benefits of mentoring flow in the other direction too: if you have been in practice a long time, taking the time to forge connections with new lawyers who come into your community can provide opportunities for you to learn about new technologies and new theories of practice.
To learn more about how to establish a productive mentoring relationship, you can download the practicePRO program’s “Managing a Mentoring Relationship” booklet on the practicepro.ca website.

Meet your new “associates”If you are not already a member of the Canadian and Ontario Bar associations, signing up is one of the easiest ways to build connections with lawyers in your community, and joining a practice section is a great way to meet lawyers in your particular area of practice. While these associations are perhaps best known for their continuing professional development programs, they also host general social and networking events, and not only in Toronto – there are a number of programs each year offered in other communities around Ontario. There are also local associations serving every part of the province.
Besides the national, provincial, and district law associations, there are also associations that have been developed by lawyers who share practice interests, culture, or other demographics. These associations typically encourage mentorship, networking, and mutual support. A few examples:

  • the Women’s Law Association of Ontario
  • the Criminal Trial Lawyers’ Association
  • the Hispanic Canadian Lawyers’ Association
  • the Family Lawyers’ Association
  • the Canadian Association of Black Lawyers
  • l’Association des juristes d’expression française de l’Ontario

And there are many more.

Of course, just joining an association is not enough. To get the full benefit of this kind of community-building, consider volunteering in an administrative role, or offering to give a presentation at an association meeting. The idea is to take advantage of as many opportunities as possible to meet and converse with lawyers in your community and to build professional relationships and friendships. Don’t only focus on introductions that will “be good for business.” Getting to know people who may not be an immediate source of client referrals can offer other kinds of help. For example, the connections you make may be great sources of advice about local judges’ preferences with respect to court materials, contact information for experts, or even just basic career advice. Finally, consider joining a club or other special interest group in your community.

Impress your opponents

If you are new to a local legal community, you can make excellent connections simply by treating opposing counsel with courtesy and respect. Often, the lawyers best placed to assess your professionalism and competence are the ones sitting on the other side of the negotiating table. If you can establish that you are both a competent advocate for your client and a reasonable and courteous opponent, you will be on your way to being accepted, within your practice area, as a person who does quality legal work and is worthy of respect. You may even get referrals from lawyers who have come to trust you, and who need to turn away clients for conflicts or other reasons.

Being seen as a reasonable opponent often boils down to basic professional courtesy: being accessible (returning phone calls and emails); keeping your word; and being fair when it comes to agreeing to adjournments, requests to reschedule meetings, and requests to allow the other side to rectify minor errors. It also means avoiding sharp practice and dirty tricks.

Be seen

Finally, you can’t expect a network of allies to come to you. If you want to develop a support network, you need to get out of your office and meet other lawyers in person. This may mean traveling to attend the occasional conference or CPD program in person (instead of just watching webcasts at your desk), serving on an association executive, volunteering at charity events (especially those sponsored by the legal community), or attending social events.

You can also be “seen” on social media – for example, on LinkedIn, on Twitter, or as a participant in a legal online community (listserv, chat room, message board). If you like to write, consider launching a blog, and invite lawyer colleagues to subscribe to your posts, or to prepare “guest posts”. You can also visit other lawyers’ blogs, and engage them via commentary.

Sole practice is not for everyone; but if it’s the right fit for you and you invest time in building your network, you can make your mark while avoiding isolation and practice risks.

Wondering whether your practice structure could expose you to liability for other lawyers’ work?

July 24, 2014 By: Nora Rock Category: Errors and omissions coverage, Law Practice Management

Lawyers working “in association” need to consider how they may be perceived by clients and the public, since those who hold themselves out as a law firm risk being treated as such by the courts and can expect to be held to the same conflict requirements as a law firm partnership.
That’s according to a recent decision by Justice Stinson, in the Ontario Superior Court of Justice [2014 ONSC 3411 (CanLII)]

The facts
The defendant brought a motion to remove the plaintiff’s lawyer from the record on the basis that the lawyer worked in association with another lawyer with whom the defendant had communicated about the same matter. The plaintiff’s lawyer and the lawyer with whom the defendant had spoken both practised as part of a group of lawyers under the same firm name, sharing the same business address and office premises and using the same telephone number (save for three digit extensions), fax number and email domain – but who were not partners, nor members of a law firm as traditionally defined.

At trial
The Master who heard the motion at first instance ruled in favour of the defendant, declining to remove the plaintiff’s lawyer from the record. The defendant appealed.

Appeal reasons
In allowing the appeal, Stinson J. held that the conflicts rules applicable to law firms ought to be applied to lawyers working in association where the lawyers “hold themselves out to the public” as a firm. Referring to an association as a “group” rather than a firm or partnership is not enough, the court held, to overcome the public’s reasonable assumptions about issues like confidentiality among the group’s lawyers. This was found to be especially true where there was no statement on the firm’s letterhead, signage, etc., making it clear that the group was not a law firm.

Although evidence was given that the lawyers “work in association” and “have completely separate practices” (including separate bank accounts and conflict systems), Stinson J. found that the common features and absence of any public disclaimer would lead a reasonably informed member of the public to believe that the arrangements would not provide adequate or sufficient assurance that confidential information imparted to the one lawyer would remain confidential to that particular lawyer.

Conspicuously absent in the case, in the view of Stinson J., was any evidence of precautions that would prevent any sharing – inadvertent or otherwise – of confidential information pertaining to the clients of any particular lawyer (e.g., instructions to support staff to take appropriate precautions regarding maintaining confidentiality, precautions dealing with faxes, mail or phone calls arriving through shared means, etc.)

Justice Stinson explained that allowing the plaintiff’s lawyer to remain on the record was likely to promote an appearance of conflict regardless of the true nature of the (non-)firm. In the interest of promoting public confidence in the integrity of the profession and justice system, the defendant was entitled to have the plaintiff’s counsel removed.
Balancing practice economics and the public interest

While Justice Stinson agreed with the Master that lawyers should be permitted to share resources for economic reasons, “…those arrangements must take into account the need to preserve public confidence in the administration of justice by implementing in advance measures that will protect client confidentiality…”

In Stinson J.’s view, lawyers who practise “in association” but who hold themselves out to the public as a law firm ought to maintain some form of common conflicts search system in order to avoid the very type of problem that arose in the present case.

Insurance implications

While it may make a lot of sense for some sole practitioners or professional corporations with only one lawyer to work together from a cost-sharing perspective or in order to promote referrals between each other, such an association can lead to more than just conflict of interest concerns. If the public might reasonably think that lawyers are working together as partners, then a claim against one lawyer may lead to vicarious exposure, as indicated under s. 15 of the Partnerships Act.
Since the “association” practice structure is not unusual among practising lawyers these days, many professional indemnity and excess insurers are keen to see that active steps have been taken to avoid the types of exposures discussed here. While lawyers sharing space and resources may practise independently from each other, courts may well find them liable for the work of each other where it is reasonable for the public to assume that they may collaborate or share information on client matters.

For this reason, under the Law Society insurance program, all lawyers who practise in association with other lawyers must purchase the basic innocent party coverage with a minimum $250,000 per claim/$250,000 in the aggregate sublimit (see Endorsement No. 5 of LAWPRO policy no. 2014-001).

Also, insurer concerns about a lawyer giving the impression — whether intentionally or unintentionally – of working in a law firm with others may result in the lawyer’s application for excess insurance coverage being declined.

Alternatively, excess insurers may insist that a clear indication of the nature of the practice (e.g. “Practising in association, not in partnership” or “Acting as a sole practitioner, not in partnership”) be included in reception greetings, on signage, business cards, letterhead, webpages, promotional materials, advertisements, etc., with a more fulsome explanation of the nature of the practice included in firm materials and on-line.

Wondering whether your practice structure could expose you to liability for other lawyers’ mistakes, or render you ineligible for coverage? Read about the indicia of collaboration – and how to overcome them – in Ray Leclair’s space-sharing presentation, delivered at the Law Society of Upper Canada’s Solo and Small Firm Conference in June 2014.

Commercial debt collection scam using the names Masakatsu Yoshikawa and Dayani Garment Indonesia

July 24, 2014 By: FraudInfo Category: Confirmed frauds

An Ontario firm notified us that they received an email from the purported Masakatsu Yoshikawa of Dayani Garment Indonesia looking to retain them with regards to a commercial debt collection.

This is a classic bad cheque scam that presents as legal matter requiring the assistance of a lawyer. In this scam lawyers will be duped into wiring real funds from their trust accounts after depositing a fake cheque received as payment from the debtor (who is part of the fraud). See our Confirmed Fraud Page for more of an explanation of how these frauds work and to see other names associated with it. Our Fraud Fact Sheet lists the red flags of a bogus legal matter that is really a fraud.

Here is the initial email sent by the fraudster to the lawyer:

From: Daya Nigarment dayanigarment@indonesiapt.com
Date: Thu, Jul 24, 2014 at 1:54 AM
Subject: Request For Your Legal Representation
To:

Dear ,

This is an official request for legal representation on behalf of
Dayani Garment Indonesia PT, We are a textile company with principal
business in manufacturing and exporting of garment.

We are presently incapacitated due to international legal boundaries
to exert pressure on our delinquent customers and we request for your
services accordingly. We got your contact information from the Online
Lawyers Directory as a result of our search for a reliable law firm or
attorney to provide legal services as requested.

After a careful review of your profile as well as your qualification
and experience, we are of the opinion that you are capable and
qualified to provide the legal services as requested.

On behalf of Dayani Garment Indonesia PT, Please accept my sincerest
appreciation in advance for your willingness to render your services
as we look forward to your prompt response to our request.

Thank you.

Sincerely,

Masakatsu Yoshikawa
Dayani Garment Indonesia PT.
JI. Raya Narogong Km. 11,
Bantar Gebang, Bekasi 17151 Jawa Barat,
Indonesia.

How to handle a real or suspected fraud Read the rest of this entry →

Excess insurance offers peace of mind to lawyers and law firms

July 23, 2014 By: TimLemieux Category: Errors and omissions coverage

Would your exposure on a negligence claim be over the individual lawyer’s $1 million per claim or $2 million in the aggregate limits offered under the LAWPRO policy for the Law Society of Upper Canada program (the “primary policy”)? Excess insurance – insurance that covers you for claims after the limits under the primary policy are exhausted – offers peace of mind for lawyers, no matter what their practice entails.

Regardless of whether you are considering a first time purchase of excess insurance or if you are wondering if your current excess insurance meets your firm’s needs, you should consider what limits of liability should be purchased by your firm.

The factors you should consider in determining what amount of excess insurance is appropriate for your firm are outlined below:

Size of firm
It’s not just large firms that have claims that breach the primary policy limits: Large claims can affect a solo or two-person firm as well. But, as LAWPRO claims statistics indicate, a lawyer can expect to face a claim approximately once every seven years. As the number of lawyers in a firm increases, the odds that the firm will experience a claim in a given year also increase. For this reason larger firms should appreciate that having a greater number of lawyers raises the chances that there will be more claims to erode the firm’s aggregate excess limits. Accordingly, firms with 16 to 50 lawyers are more likely to purchase LAWPRO excess insurance with the highest limits offered, being $9 million per claim and in the aggregate, than smaller sized firms.

Area of practice
When reviewing claims LAWPRO looks at both the “frequency” of claims for different types of law (how commonly are lawyers sued in that practice area) and “severity” of claims (what is the relative cost to resolve claims). Some areas of practice are more prone to frequent claims (real estate, civil litigation and corporate/commercial law) and some have the more costly or severe claims (securities, bankruptcy, tax, environmental law, etc.). When choosing limits for your excess insurance consider whether lawyers in your firm practice in an area of law that is more likely to have frequent or severe claims.

Underlying value of files
Influencing the severity of claims, the more valuable the assets, size of transaction or potential award at the core of the retainer, the more serious the potential damages if the lawyer makes an error. When looking at these figures, also consider consequential damages that would arise from the sort of legal services provided. A firm that never has matters or transactions with underlying monetary values that exceed $500,000 may seek lower limits than a firm which handles complex tax planning for wealthy clients or high value farm conveyances. If, for example, a firm routinely handles $5 million financing arrangements, then the law firm should consider having in place at least enough insurance protection to cover claims of this amount.

Contractual requirements
Sometimes when lawyers bid for contracts or negotiate retainers to act for government agencies or large commercial lenders, the lawyers will discover that there are minimum insurance requirements. If a tender to provide legal services requires a lawyer to carry $5 million E&O coverage, for example, the lawyer would, as a minimum, apply for $4 million per claim/aggregate excess limits, on top of the $1 million per claim/$2 million in the aggregate limits of liability afforded the lawyer under the primary policy. The lawyer would then have documentation available to offer in satisfaction of the tender requirements.

Consider all factors that may erode limits
A damages award against a lawyer is not the only thing that will erode limits. Interest and costs associated with defending and/or repairing the claim will also reduce or even exhaust the limits available. Keep in mind that in some scenarios defence costs can be very high. These can include: the lawyer is named as a defendant in a class action; the claim is complicated due to the number of parties or unique legal issues; or the claimant has assumed an aggressive approach to litigation that makes scheduling and discoveries take longer.

Lawyers should also be alert to the potential for erosion of aggregate limits at the primary and excess level in the event a lawyer or firm faces a number of claims in the same policy period. For example, if the same underlying advice is given to many clients on an untried point of law and that advice is subsequently found to be wrong, there could be a large number of claims or even a class action brought. We have seen this occur with respect to advice on tax issues that had not yet been subject to ministerial clarification or judicial interpretation.

What does it cost?
LAWPRO’s excess insurance program is underwritten and rated on an individual basis, so there is no “standard” premium. If a firm is approved for excess insurance with LAWPRO, factors which may affect the firm’s premium include, for example, the number of lawyers in or working with the firm, the practice areas, the claims history of the firm lawyers, years in practice, size of practice and the limits of liability being sought. A sole practitioner seeking lower excess limits of liability ($1 million or $2 million per claim/ in the aggregate over and above the primary policy limits), in a lower risk practice area and with a good claims history would commonly expect to pay in the range of $50 to $80 per month (excluding tax) for excess insurance from LAWPRO, based on current pricing. The same practitioner purchasing $4 million per claim/in the aggregate in excess limits might pay over twice that amount.

Assess yourself
Knowing what exposure your firm has in the event a mistake or series of mistakes occurs is the first step in transferring the risk from the lawyers or the firm itself to an insurer. Exposure can arise from having claims that exceed your primary limits, providing services that are not covered by insurance or having gaps between when the primary limits are exhausted and the excess insurance will step in (for more on this see “Avoiding gaps
in coverage”).

Peace of mind comes from knowing that the right level of protection has been purchased and put in place. For more information on LAWPRO’s excess insurance offerings please visit the excess insurance page on the LAWPRO website (lawpro.ca/excess). There is also a self-assessment tool that will allow you to test your exposure to excess claims at lawpro.ca/stresstest.

This article by Victoria Crewe-Nelson, Assistant VP of Underwriting at LAWPRO, originally appeared in the September 2013 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives

Commercial debt collection scam using the name Keir Greenaway

July 23, 2014 By: FraudInfo Category: Confirmed frauds

An Ontario firm notified us that they received an email from the purported Keir Greenaway looking to retain them with regards to a commercial debt collection.

This is a classic bad cheque scam that presents as legal matter requiring the assistance of a lawyer. In this scam lawyers will be duped into wiring real funds from their trust accounts after depositing a fake cheque received as payment from the debtor (who is part of the fraud). See our Confirmed Fraud Page for more of an explanation of how these frauds work and to see other names associated with it. Our Fraud Fact Sheet lists the red flags of a bogus legal matter that is really a fraud.

Here is the initial email sent by the fraudster to the lawyer:

From: Keir Greenaway gmbmerton@btconnect.com
To:
Date: 17/07/2014 05:37 PM
Subject: Legal Inquiry!

Dear Counsel,
My company would like to sue our client for breach of contract and is looking for a lawyer who has experience in the field of law that relates to our case. Contact us for more details if you handle such cases and if you don’t please refer.

Thank you.

Regards,
Keir Greenaway

How to handle a real or suspected fraud Read the rest of this entry →

New in the practicePRO Lending Library: Flying Solo, 5th Edition

July 21, 2014 By: TimLemieux Category: Law Practice Management

Solo

Newly revised and updated to meet the needs of today’s legal professionals, Flying Solo is a comprehensive guide to establishing and maintaining a successful solo law practice. The Fifth Edition of this ABA classic includes practical information gathered from a wide range of contributors, including successful solo practitioners, law firm consultants, state and local bar practice management advisors, and law school professors. Whether you’re thinking of going solo, new to the solo life, or a seasoned practitioner, Flying Solo provides time-tested answers to real-life questions. This book will help you:

  • Make the decision to open your own law firm
  • Choose the right practice area(s)
  • Create a business plan and determine your fees
  • Leave your current firm—without burning bridges
  • Set up an office space
  • Work with traditional and alternative billing arrangements
  • Use technology to manage your finances
  • Develop and execute a marketing plan
  • Gain clients through social media
  • Plan strategically for the future

The practicePRO Lending Library is a free resource for Ontario lawyers of more than 100 books on a wide variety of law practice management related topics. You can see a full listing of our books here. You may borrow a book in person or via e-mail.

The practicePRO Library is located in our office at 250 Yonge Street, Suite 3101 in Toronto and can be visited during our regular business hours (Mon to Fri, 8:30 to 5:00). We invite you to come by anytime (please email in advance)to peruse our selection. All titles in the practicePRO Lending Library can be shipped to Ontario lawyers at our expense, and returned at yours after three weeks.

If you would like to borrow this or any other book please email us. Most of our titles are also available from the American Bar Association Web Store or the major booksellers here in Canada.

Commercial debt collection scam using the names Ugo Grondelli and Alteco Medical

July 18, 2014 By: FraudInfo Category: Confirmed frauds

A Washington state firm notified us that they received an email from the purported Ugo Grondelli of Alteco Medical looking to retain them with regards to a commercial debt collection.

This is a classic bad cheque scam that presents as legal matter requiring the assistance of a lawyer. In this scam lawyers will be duped into wiring real funds from their trust accounts after depositing a fake cheque received as payment from the debtor (who is part of the fraud). See our Confirmed Fraud Page for more of an explanation of how these frauds work and to see other names associated with it. Our Fraud Fact Sheet lists the red flags of a bogus legal matter that is really a fraud.

Here is the initial email sent by the fraudster to the lawyer:

From: Ugo Grondelli [mailto: info@altcomedical.com]
Sent: Thursday, July 17, 2014 6:21 AM
To:
Subject: Breach Of Contract

Our company is soliciting for legal assistance (Attorney) to handle a
breach of contract case,either through negotiation or litigation. Yours
Sincerely, Ugo Grondelli Board Member. Alteco Medical AB
www.altecomedical.com

How to handle a real or suspected fraud Read the rest of this entry →

Want a challenge-proof will? Think like a (wannabe) beneficiary

July 17, 2014 By: TimLemieux Category: Wills/Estates

As a lawyer, you have likely been trained to maintain a laser focus on your client’s interests and how to express and defend them. Being a fierce advocate is usually a good thing.

But when preparing a will for a client, it can be a useful exercise, once you have a good first draft, to intentionally play devil’s advocate.

At the Law Society of Upper Canada Solo and Small Firm Practice Conference in June 2014, estates lawyer Lisa Barazzutti suggested that when reviewing a newly-drafted will, it’s useful to read the will from the perspective of the beneficiaries. “Ask yourself,” says Barazzutti, “if I were a beneficiary, would I challenge this, and how?”

Putting yourself in the shoes of your client’s beneficiaries (or others who expect to benefit – but won’t) is a good way to remind yourself that a testator’s family may have expectations – valid or otherwise – about how assets will be distributed. To the extent that you can anticipate those expectations, you can identify potential areas of disappointment. The provisions in which the client’s instructions diverge from beneficiary expectations are the “stress points” where the will is vulnerable to challenge. Once you have identified those stress points, you can take steps to reinforce them.

For example, where a testator’s adult children are expecting to share equally in the ownership and management of an income property – and the testator would prefer to leave that asset to just one of the children − the will can include an explanation of the testator’s reasons: for example, that she thought it would be impractical for the children to make the necessary business decisions jointly. This explanation might limit the arguments that the “disappointed” beneficiaries can make in support of a claim for equal shares of the asset.

Provisions that explain the testator’s reasons for will decisions can also help counter challenges based on lack of testamentary capacity, because they can serve as evidence that the testator applied his or her reasoning to the implications of the particular bequests and devises. The chances of a successful capacity challenge can be further minimized by making notes in the file about discussions with the testator about his or her reasons. The lawyer can also describe, in file notes, his or her impressions of the testator’s capacity; as well as any inquiries made to ensure that the testator was not subject to undue influence.

Often, the parties most likely to challenge a will are not beneficiaries at all, but rather, non-beneficiaries: those individuals who expect to receive an inheritance, but who will not. Would-be beneficiaries who were dependent on the testator while he or she was alive will generally be able to rely on the Ontario Succession Law Reform Act (or comparable legislation in your jurisdiction) for a remedy. The trickier question is whether other, non-dependent parties may attempt to challenge the will based on the content of pre-existing wills, verbal promises, business contracts, trust doctrine, or other analyses.

To anticipate these arguments, the lawyer will need a detailed understanding of the client’s past and present relationships, marriage and/or business history, and living arrangements. Using a will interview checklist can help a lawyer remember to ask particular questions and to make notes in the file.

After reviewing those notes, read the draft will, considering the provisions from the perspective of former spouses, business partners, caregivers, and housemates. If anyone were to challenge the will, who would it be, and what would he or she argue? Once you’ve identified potential stress points, consider clarifying provisions to limit challenge arguments. Being devil’s advocate can mean being your client’s best advocate too.