Claims against estate lawyers on the rise: how to avoid errors in estate planning

This article was provided by eState Planner.

Recently, Ian Hull and his partner Jordan Atin were reminiscing about Ian’s father, Rodney Hull - one of the deans of the Estate Bar. When Rodney was a young lawyer, his mentor told him never to take notes of his client meetings because it showed that you had concerns about the client’s capacity.

While some things have clearly changed, most things about an estate planning practice haven’t. And that’s the problem.

Consequences of common malpractice errors

Looking at the statistics that LawPro puts out, claims against estate lawyers are climbing dramatically. And the main reason behind that is that estate planning has become more complex over the past few years, increasing the likelihood of making mistakes at any stage of the client file. That and the fact that most lawyers only use a pen, a piece of paper and the “cut and paste” button.

From inadequate client investigation on their families, relationships, and assets; to the complexity of gifts; to simple things like spelling mistakes or typos – not only those can cause embarrassment when the client catches them for lawyers, but liability, too.

The most common mistakes made by lawyers

Nowadays, estate lawyers have to remember hundreds of pieces of information and knowledge when putting together a plan – things they have to correlate so they don’t make a mistake.

Amongst the most common reasons estate lawyers make mistakes in their client’s estate plan, we find:

• not asking the proper questions to confirm key information
• not remembering or documenting all the information and instructions
• misunderstandings between the client’s wishes and the lawyer’s understanding
• not properly correlating instructions to the draft
• relying on manual transcription of client’s information
• using previous precedents which are not reflective of the client’s particular plan
• not confirming the client’s will matches their wishes

Resources and steps to avoid estate planning mistakes

To avoid mistakes when putting an estate plan together for clients, here’s a list of resources and steps that helps:

• an estate planning checklist like this one that outlines all the steps to follow, from data collection, to planning and drafting, to reporting
• use visuals to eliminate any potential disconnect between the lawyer and their client
• better note taking or recording of the client interview
• better synthesis of the client’s information/instructions and the lawyer’s expertise

These solutions can be implemented with technology. Software can obviously fix the simple errors, like spelling and paragraph references, but it can do so much more. While lawyers are still relying exclusively on their own mental acumen to do their job, software is made to leverage data. It can correlate information about a client’s family assets and the proposed plan with their estate law knowledge - and ensure that it all fits together properly.

eState Planner, an industry-leading cloud-based software used by 400 law firms in Canada, makes estate lawyers’ practice safer and better. Created by Ian Hull and Jordan Atin, it is set out to address each of the causes of liability identified by LawPro.

Whether it’s ensuring that a charity’s name and registration number is properly reflected in the will with a built-in CRA based charity picker, or real time “Advisor Insights” that warn lawyers of those legal issues on each particular client’s circumstances, eState Planner’s mission is to make estate lawyers’ jobs safer than relying on a pen, paper and a word processor.

Jordan Atin is a certified specialist in Estates Law at Hull & Hull LLP and co-founder and CEO of eState Planner. eState Planner streamlines the estate planning and will drafting process for lawyers, and their clients.