Решение апелляционного суда Онтарио оспорит валидность завещаний, составленных при наличии конфликта интересов

A recent Ontario Court of Appeal decision about a will challenge has set off alarm bells for estate lawyers who rely on referral networks for their businesses. In Anroop v. Naqvi, the appeal court judge ruled a will was invalid in part because of a conflict of interest involving the lawyer who drafted the document. Specifically, the court pointed to the fact that the solicitor rented space from a beneficiary’s spouse’s business. The beneficiary’s spouse, who owned a real estate brokerage, also had referred business to the solicitor over the years. This decision reverses the findings of the application court judge, who found the will to be valid. The case involves two disinherited family members and includes issues related to mental capacity and allegations of a forged signature. The will being challenged was a fourth will, drafted by the lawyer with the apparent conflict of interest, that was vastly different from the previous three wills (which were drafted by a different lawyer). The appeal court judge found the will was invalid for several reasons, including undue influence and other “suspicious circumstances” in addition to the conflict of interest. But estate lawyers are talking about how the conflict of interest finding could affect how they do business. “The case illustrates that outcomes with will challenges are unpredictable,” says Nick Esterbauer, a partner at Hull and Hull LLP in Toronto. “We have two courts applying the same framework to the same record and they reached opposite results.” He says the potential conflict of interest makes this estate case somewhat unique and one to watch. The applicant’s lawyer, Kim Gale, who is the founder and principal of Gale Law in Toronto, says she plans to apply for leave to appeal the case at the Supreme Court of Canada based on the conflict of interest issue. That issue was at the core of the Court of Appeal judge’s decision, says Diane Vieira, a partner at DeVries Litigation LLP in Toronto, and some lawyers who draft wills have expressed concern. “It’s common for people to do wills for the friends of their business associates,” she says. “Now, they’re worried that there’s a potential conflict of interest created when a business associate refers a client to them who needs a will.” In the case, the drafting solicitor didn’t charge a fee for the will, Ms. Vieira says, which the court noted added to the conflict of interest. Not receiving payment raises questions about “divided loyalties,” she says, as the lawyer seemed “financially intertwined” with the testator’s son-in-law and didn’t receive payment from the testator. Ms. Vieira also says the lawyer in the case didn’t have a reporting letter, which summarizes the client’s instructions, concerns and all items discussed during the client-lawyer meeting. Lawyers will likely need to add conflicts in their reporting letter to the client, she says. And if the lawyer isn’t going to charge for the will, they need to document why and include it in the reporting letter to their client, especially if there is a potential conflict of interest. Rebecca Fisch, an estate lawyer at RSF Law in Toronto, says the conflict of interest is only one of the three suspicious circumstances the Court of Appeal listed as being an issue in this case and is not, in itself, the determining factor. “I don’t see any issue with the general practice of referrals,” she says. “I don’t think the decision leads to the conclusion that lawyers can’t refer each other files or can’t accept referrals from colleagues. In this case, we have a will with several suspicious circumstances, of which the alleged conflict of interest is one.” She adds that where there are suspicious circumstances, the onus shifts to the person who is saying the will is valid to prove that it is. “The Court of Appeal here found that the proponent was unable to do so,” she says. Managing conflicts and incapacity Ms. Vieira says lawyers should require clients to waive any conflicts of interest when they’re retained. “People have the right to retain the attorney they want, even in the face of a potential conflict of interest, but that conflict should be noted,” she says. “Address it in the initial meeting, address it in writing and discuss it with your client.” She says if advisors or other professionals are asked for estate lawyer recommendations, it’s good practice to offer at least three names and let the client make the final decision on who they retain. “Offering multiple referrals excuses potential liability if something goes wrong,” Ms. Vieira says. That can be more difficult in smaller communities, she adds, where there may be just one or two solicitors. Ms. Fisch says the case reconfirms safeguards she has in place when dealing with elderly clients on estate matters. “We really have to ensure we are comfortable with their level of capacity and that they have knowledge and approval of the contents of the will,” Ms. Fisch says, adding that the lawyer’s notes have to reflect this as well. Any will that is a substantial change from a testator’s previously drafted wills can be deemed a red flag in the eyes of the court, she says, and the lawyer’s notes are even more essential in those circumstances.