Avoiding ‘Inadequate Investigation’ Claims in Wills & Estates
Back in 1998, “inadequate discovery of fact or inadequate investigation” was the fifth most common cause of a claim when we looked at the top five reasons a claim was made against a lawyer. Since then the claims cause of “inadequate investigation” has climbed steadily upwards to the number one spot: By 2014, this category of errors had more than doubled in frequency. Moreover, claims resulting from inadequate investigation or discovery of facts also increased proportionately in terms of all LAWPRO claims, rising to 22 per cent of errors reported from eight per cent.
Why this significant increase in this type of error? Perhaps it is a symptom of “BlackBerry legal advice:” Quick questions, and answers without context exchanged between people in a rush. These claims go to the very core of what lawyers are supposed to do for their clients – give legal advice – and basically involve the lawyer not taking extra time or thought to dig deeper and ask appropriate questions on the matter.
On a will or estates planning matter an inadequate investigation claim might involve:
- not asking the testator what their assets are;
- not asking about the existence of a prior will;
- not asking about dependents, including disabled children;
- not digging into more detail about the status of past marital relationships, other children or stepchildren, or whether a spouse is a married spouse or common law spouse;
- not enquiring about beneficiaries named in RRSPs, life insurance policies and pension plans;
when an elderly client wants to make major changes to his/her will, not taking steps to ensure testamentary capacity and that the client is not under undue influence;
- not doing due diligence to verify that the information a client provides about his/her assets or liabilities is accurate. It may not be the lawyer’s job to confirm all the details, but if disputes break out among unhappy beneficiaries they could attempt to blame the lawyer; and
- not taking the time to search out the existence of all blood relatives in the event that a person dies intestate.
To avoid these claims, take the time to read between the lines so you can identify all appropriate issues and concerns. Ask yourself: What does the client really want? Does everything add up? Are there any issues or concerns that should be highlighted for the client? If something doesn’t add up – dig deeper.
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