BACK TO SCHOOL: Solicitors' Negligence ' Standard Of Care - Part 2

• Published date: 15 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Minden Gross LLP
• Author: Ms Sheila Morris

With the "back to school" season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors' negligence. This four-part series will examine the essential elements of solicitors' negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later!

PART 2 - Standard of Care

The second installment in this series examines the standard of care by which a lawyer's conduct is measured.

General Rules

First, let's look at some general rules. The standard of care is a question of law;^{1 2} whether the lawyer has met that standard is a question of fact.^{3 4} To measure the lawyer's standard of care or to define the nature of the lawyer's duty the law uses the general standard of a reasonably competent lawyer.^{5 6} A lawyer will not necessarily be negligent simply because they are ignorant of the law; t ignorance will only give rise to liability where it can be shown that a reasonably competent lawyer would not have acted under it. If the standard of a reasonably competent lawyer is insufficient to respond to a known risk, then the law will require the lawyer to meet a higher standard, and provide services that do respond to the risk.⁷ And, while it is not the lawyer's duty to know the contents of every statute, there are some statutes that they are duty-bound to know.⁸

The Estates Context

In the estates context, the duties of a will-drafting lawyer are to inquire into the testator's capacity and carry out the testator's true intentions.^{9 10} There are certain circumstances that will require the lawyer to take additional measures to ensure that the testator's true wishes are being expressed and that such wishes will be protected and upheld. The circumstances include:

1. an elderly testator;
2. a testator who has suffered significant ill health, particularly if the condition, the disease or required medication could affect the mental stability or general mental outlook of the testator;
3. a testator who is unwilling to provide the lawyer with full information relating to the assets liabilities, or family condition and circumstances;
4. the disposition of the estate is one that would generally be viewed as being unusual in the context of the objective circumstances of the testator;
5. a beneficiary of the will has been particularly involved in assisting the testator with the preparation of the will; and
6. the dispositions set out in the will represent a drastic departure from the terms of the former will.¹¹

A lawyer must inquire into these unusual or suspicious circumstances. A lawyer will not have discharged their duty by simply taking down and giving expression to the client's words and limiting the inquiry to asking the testator if she understands the words.¹² Courts have described lawyers who operate in...