No lawyer is immune from claims for negligence. For estates and trusts practitioners, these claims can arise from the failure to ensure that a testator’s wishes are accurately reflected in his/her will, to neglecting to confirm that the testator had the requisite capacity to execute a will or was not subject to undue influence when providing instructions. This article provides a general overview of the current law of solicitor’s negligence and the leading cases on the topic, with a focus on how negligence claims may arise (and be prevented) in an estates and trusts practice.
Pilotte v. Gilbert, Wright & Kirby, Barristers & Solicitors, 2016 ONSC 494 (“Pilotte”) sets out the current test for solicitor’s negligence. In that case, the Court held that for a lawyer to be found liable for negligence, it must be shown that the lawyer’s “error or ignorance was such that an ordinarily competent solicitor would not have made or shown it.” (at paragraph 34)
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