Pay a little now or more later

Lawyers love it when people do their own legal work.  Almost always, when non-lawyers prepare legal documents, they botch the job.  Most non-electricians are smart enough not wire their own houses.  But people think lawyering is not complicated.

God love them.

A lawyer can usually charge vastly more to fix the mess when the client “saves legal fees” by doing their own legal work.  We see this a lot in estates matters. 

The recent case of MacKinnon Estate: https://canlii.ca/t/jzmwn is a good example.  The simple facts are that Ronald McKinnon died 17 November 2021.  He left a sister, a son (James), 2 nieces, and the nieces’ children.  His Will was not properly signed or witnessed.  He left everything to his nieces and their kids – nothing to his son.  Ronald had had a relationship about 1988-1989 with James’ mom, got her pregnant, then dumped her while she was pregnant.  Ronald never supported James.  He appears never to have seen James since about 1995.

Ronald’s Will was contested: James argued that it was invalid.  If the court had ruled the Will was invalid, Ronald would be deemed to have died without a Will.  James would be the only legal heir and inherit everything.

Ronald’s sister, as executor, argued the Will was valid, and just needed “rectification” under the Wills, Estates and Succession Act (“WESA”).  Everybody had lawyers: James, the Executor sister, the nieces, and the Public Trustee sent a lawyer on behalf of the kids. 

Ronald had used a “will kit” to prepare a “living will” (see our blog which explains these are nonsense), an enduring power of attorney, and the Will in dispute.  Weirdly, the “living will” and power of attorney were properly signed and witnessed.  All 3 pages of the Will were initialed by Ronald, but not witnessed or signed.

Madam Justice Girn heard the case over 2 days (07 Nov 22 & 20 Jan 23), then issued her decision 11 August 2023.  She held the Will was valid.  So, at least at first blush, Ronald’s condo and bank account go to his 2 nieces and their kids.

The hearing took two days.  I assume each lawyer charged out at $5,000 per day.  Four lawyers X 2 days X $5K = $40K.  Plus all the pretrial process: filing the claim, replying to that, collecting and serving documents, and the endless correspondence and telephone calls.  I expect this all ran close to $100K.  Every penny of which Justice Girn ordered to be paid from Ronald’s estate.

But wait: Ronald made no provision for his son James.  He has a powerful claim under WESA, s.60: Ronald did not make “adequate provision” for James.  Nieces and their kids have no legal right to inherit (except by specific gift in a Will).  Only children and spouses have a right to inherit.  The court is likely to give a significant share of Ronald’s estate to James.  That might be half for him, half for the nieces and their kids collectively.  It might be a third for James, and a third for each niece and their respective kids.  I doubt it will be less than that. 

Any lawsuit to vary the Will (and give a share to James) will also be paid for by Ronald’s estate.  At a burn rate of about $20K per day.

Thank you, Ronald, for cheaping out on preparing your Will.  By not paying a couple thousand dollars to plan your estate, you have provided at least 4 lawyers with weeks of billable hours.

At Clear Legal, we have been helping clients avoid their final words being stupid ones since 1990.