Estate lawyers currently face dual challenges: surging caseloads alongside increasing professional liability risks. LawPro's latest data paints a clear picture—3,272 new claims opened last year, with wills and estates work making up 12% of them. The root cause isn't poor legal knowledge but the practical challenge of keeping good documentation and thorough investigation under time pressure.

We recently hosted Ray Leclair, Vice President of Public Affairs at LawPro, for a detailed examination of risk management in estate planning. Drawing from his extensive experience, we've compiled essential strategies to protect your practice from these claims while improving efficiency. The complete webinar recording offers additional insights, but this article will give you the most crucial takeaways for immediate implementation.

Inadequate investigation: the silent risk multiplier

While real estate and litigation still lead in total claims, estate law poses a unique challenge. Our mistakes often don't surface until years after file closure, when memories have faded and documentation is our only defence.

The biggest culprit in estate claims—accounting for almost 40%—is inadequate investigation. When claims surface years later, they often trace back to incomplete information about beneficiaries or assets that seemed minor at the time. Missing details about client assets, beneficiaries, or undocumented family dynamics can turn into significant liability issues.

Here's what Leclair advises for a thorough investigation:

• Identify and document all potential beneficiaries, even those not included in the will
• Confirm asset titles through due diligence, even if clients resist the cost
• Verify proper spelling and legal names, especially for charities
• Have a system for proofing final documents against original instructions

The solution starts with a systematic approach to client intake. A documented estate planning process, supported by comprehensive questionnaires like this free template, creates a safety net for your practice. While gathering detailed asset information might feel excessive for simpler wills, you won't know what's actually relevant until you have the full picture. This thorough investigation not only protects you but also helps identify planning opportunities that might otherwise be missed.

Documentation and due diligence: your shield against future claims

As Baby Boomers transfer billions in assets to their children, we're seeing more beneficiaries challenge estate decisions in court. The notes you take today might be your key defence years from now. Leclair emphasized during that webinar that effective documentation isn't just about recording what was decided. It's about capturing why those decisions were made.
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Leclair's best practices for documentation requirements include:

• Document conversations about excluded beneficiaries or reduced inheritances
• Confirm and record assets that fall outside the estate (insurance, RRIFs, pensions)
• Save 10 minutes after each client meeting to complete your notes while memories are fresh

Document every conversation where clients explain their choices, especially for unequal distributions or excluded family members. Verify asset titles and beneficiary designations. Ask and record responses to open-ended questions like "Can you explain to me why you've chosen this approach?" These details create clear evidence of client intent and capacity.

Pro Tip

Collect client information with eState Planner's customizable intake forms.
eState Planner offers customizable built-in intake forms that easily and accurately gather clients' personal and financial information, along with their specific instructions.

The collected information automatically generates family trees, giving lawyers and their clients a clear visual way to review and verify essential details.

Client capacity: more than just a medical question

Remember this key point from Leclair: capacity assessment is a legal determination, not a medical one. It's your responsibility as the lawyer to verify that your client understands what they're doing and why they're doing it.

Leclair recommended this specific guidance for capacity assessment:

• Ask about medical conditions upfront: hidden conditions can become problematic if capacity is later challenged
  
• Document the client's demeanour and comprehension during meetings
• For virtual meetings, confirm the client is truly alone: ask who else is in the house and ensure no one is listening behind closed doors
• Use open-ended questions to test understanding: Have clients explain their decisions in their own words

Pro Tip

The key to handling capacity concerns effectively lies in how you frame the conversation. Instead of approaching it as a potential problem, position yourself as an ally in protecting your client's wishes. "I want to make sure your decisions are ironclad" resonates better than suggesting a capacity assessment. This approach not only helps maintain the client relationship but also creates stronger documentation for defending their wishes years down the line.

Reporting letters: your first line of defense

A solid reporting letter can make the difference between a defensible claim and a costly settlement. According to Leclair, too many lawyers treat reporting letters as an afterthought, when they should be a core part of your risk management strategy.

According to Leclair, your reporting letter needs to document:

• The reasoning behind any significant changes from previous wills
  
• Who's being excluded or receiving reduced inheritances, and why
• Assets falling outside the estate (insurance, RRIFs, pensions)
• Clear assignment of responsibility for changing beneficiary designations

Putting it all together: your practice checklist

Leclair's most practical advice focuses on the daily habits that protect your practice. His key message? "These are checklists, not wish lists"—every item needs completion, even when you're busy.

Essential daily practices include:

• Save 10 minutes between client meetings for immediate note-taking—don't trust your memory at day's end
• Use standardized checklists for every file, regardless of complexity we offer a free template here
• Review practice resources regularly—Leclair recommends bookmarking LawPro's practice guides for quick reference

Ready to strengthen your practice against claims? In addition to weekly webinars providing lawyers with tips to improve their practice, eState Planner—Canada’s leading wills and estates software—helps lawyers streamline client intake, reduce will-planning errors, and generate wills, reporting letters, and other documents. To learn more, schedule a demo here.

About the author

Jordan Atin

Jordan is an adjunct professor at Osgoode Hall Law School. In 2004, Jordan was appointed as one of Ontario’s first certified specialists in Estates and Trusts Law. He is the past chair of the Ontario Bar Association Estates Section and a full member of the Society for Trust & Estate Practitioners. Jordan was the inaugural recipient of the Hoffstein Prize, recognizing his contribution and achievements in estate law.