beneficiaries when they have preparing a will, because he thought he could been retained not safely draw a will because B did not have a Absence of retainer, usually not complete sense of what was to happen to his the necessary proximity to estate and would not have been able to establish duty of care between maintain alertness long enough to review and lawyer and third party executor a will. B died that evening, intestate. H Where a person does not have sued F because he would have benefitted had F capacity, a lawyer has a duty to actually drafted the will. decline the retainer. No retainer, no proximity, and therefore no Held: F properly assessed B did not have liability. testamentary capacity, and thus had the duty to Where duty of care exists, test for decline the retainer. F had no duty of care standard of care is: whether a towards H. reasonable and prudent solicitor in the circumstances could have concluded that WM did not have capacity Formalities of Execution Necessary Elements Issue Where Ratio Notes What formalities s. 37 (1) To be valid, a will must be so NO oral wills must a will have to WESA Testimonium Clause = “I sign this be “duly (a) in writing, will on this date…” executed”? Attestation Clause = “This will was (b) signed at its end by the will-maker, or signed by the will-maker in my the signature at the end must be presence…” acknowledged by the will-maker as his or hers, in the presence of 2 or more CONSIDER: witnesses present at the same time, and In writing? Signed by will-maker? (c) signed by 2 or more of the witnesses in Signed at the end? the presence of the will-maker. Acknowledged OR signed in the presence of two witnesses at the (2) A will that does not comply with same time? subsection (1) is invalid unless Witness had capacity? Signed by witnesses? (a) the court orders it to be effective as a In the presence of the will-maker? will under section 58 [court order curing deficiencies], (b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or (c) it is valid under another provision of this Act.
beneficiaries when they have been retained Absence of retainer, usually not the necessary proximity to establish duty of care between lawyer and third party Where a person does not have capacity, a lawyer has a duty to decline the retainer. No retainer, no proximity, and therefore no liability. Where duty of care exists, test for standard of care is: whether a reasonable and prudent solicitor in the circumstances could have concluded that WM did not have capacity preparing a will, because he thought he could not safely draw a will because B did not have a complete sense of what was to happen to his estate and would not have been able to maintain alertness long enough to review and executor a will. B died that evening, intestate. H sued F because he would have benefitted had F actually drafted the will. Held: F properly assessed B did not have testamentary capacity, and thus had the duty to decline the retainer. F had no duty of care towards H. Formalities of Execution Necessary Elements Issue Where Ratio Notes What formalities must a will have to be “duly executed”? s. 37 WESA (1) To be valid, a will must be (a) in writing, (b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and (c) signed by 2 or more of the witnesses in the presence of the will-maker. (2) A will that does not comply with subsection (1) is invalid unless (a) the court orders it to be effective as a will under section 58 [court order curing deficiencies], (b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or (c) it is valid under another provision of this Act. so NO oral wills Testimonium Clause = “I sign this will on this date…” Attestation Clause = “This will was signed by the will-maker in my presence…” CONSIDER: In writing? Signed by will-maker? Signed at the end? Acknowledged OR signed in the presence of two witnesses at the same time? Witness had capacity? Signed by witnesses? In the presence of the will-maker?