Dreamt Of In Her Philosophy
The British Columbia Law Society Hearing Division found some allegations established but rejected other charges against an attorney who had incompetently represented a client in drafting her will.
AB was the founder and leader of a long-running philosophical society (“EPS”), which had a small, long-term group of students/members (the “Members”). In the summer of 2018, AB was 95 years old, in poor health, and had sustained a broken hip.
Among the charges was that the attorney
fail[ed] to determine the status of the “society” as a legal entity or its correct legal name, or both, when he drafted the Will naming the “society” as a beneficiary
The client was also a victim of possible elder abuse.
Findings
The Respondent’s lack of diligence in determining the legal name and status of the beneficiary of AB’s Estate is a marked departure from the conduct that the Law Society expects from its members and was professional misconduct.
AB told the Respondent that she wanted the beneficiary of her estate to be “the Philosophy Group.” This instruction required him to confirm both the existence of the “Philosophy Group” as a legal entity and its exact name so that it could be correctly named in the will. If it was not a legally recognized entity, then for it to be the beneficiary of AB’s estate, a legal entity would have to be formed, or other measures, such as setting up a trust, would need to be taken.
The Respondent confirmed that he made no effort to determine the legal status or other details of the society that was eventually incorporated as the Association. He took a photograph of a sign at AB’s property and believed that this was (or would be) the name of the society, but did nothing to confirm this belief. He did not communicate with AB or the Association’s members about the name or legal status of the group nor did he do an online search to confirm its name or other information before or after drafting the Will.
The Respondent’s explanation as to why he took no steps to confirm the legal name or legal status of the society was that he did not think that he needed to. The Respondent did not appear to understand the importance of correctly naming the beneficiary in the Will, or the potential consequences if the name was incorrect.
Competence issues
Many of the Respondent’s actions failed to meet the quality of service of a competent wills and estates lawyer. His explanation for how the name of the beneficiary came to be misspelled demonstrated a serious lack of diligence or conscientiousness. His explanations for why he never met with AB to confirm her instructions or review the draft Will with her or execute the Will showed a lack of common sense and a serious failure to provide competent legal service.
Allegation 1(c), that the Respondent failed to provide competent service and committed professional misconduct by providing AB’s unsigned Will to a named beneficiary or representative is not established.
Allegation 2 about the Respondent’s pre-taking of the Executor Fees without receiving a signed release from the beneficiary or a court order is established with respect to Rule 3-64. The Respondent’s conduct amounted to a marked departure from the expected standard of conduct.
Allegation 3 is established with respect to $7,560 of the Legal Fees. The Respondent’s conduct was a marked departure from the expected standard of conduct and was professional misconduct. However, the allegation of misappropriation was not established.
The Panel orders the Respondent return the $71,149.12 in Executor Fees to his trust account by December 31, 2024 and not withdraw the funds until he obtains consent of the Association or a court order.
(Mike Frisch)