As explained by the Law Society of Ontario, independent legal advice is provided by an outside lawyer who is unrelated to the client’s matter, associated parties, or the lawyer, and who does not have a conflicting interest. The role of the lawyer providing independent legal advice is to give the client advice that is objective and unbiased regarding a decision the individual is facing.

Recently, the Supreme Court of Canada refused to hear an appeal in an estate case that had turned largely on whether a father had received independent legal advice relating to an agreement to transfer his property to his son prior to his death.

Father Dies Without a Will

The father had one son and five daughters. He worked as a farmer and owned farmland in Saskatchewan.

The father died in 2018 without a will.

Under the law, having died intestate, the father’s his six children would share equally as beneficiaries of his estate.

Son Claims Father Promised to Transfer Farm to Him

After the father’s death, his son informed his five sisters that their father had previously agreed to transfer the farm to him. The son claimed that an agreement to transfer the farm had been drafted by a lawyer prior to the father’s death, but it had never been signed.

The son sued the father’s estate, asking for a declaration that the unsigned agreement was effective and enforceable. He also sought an order for specific performance obliging the estate to perform the terms of the agreement.

If the farm was so transferred, the father’s estate would be greatly reduced.

In response, the estate asked the son’s claim to be dismissed on several grounds. The estate claimed that the lawyer who drafted the agreement had recommended that the father receive independent legal advice prior to signing, which the father did not obtain. The estate further argued undue influence based on the fact that the father had been in ill health, was relatively isolated and had been reliant on the son. Additionally, the son appeared to have accompanied by the father when they met with the lawyer to draft the agreement, which would have transferred his property for far below market value and to the detriment of his daughters.

Lower Court Dismisses Son’s Claim

While the trial judge found that there had been an oral agreement made for the transfer of the farm from the father to the son, the court considered the father’s failure to obtain independent legal advice in its ultimate determination. The court began by explaining the purpose of independent legal advice:

“Independent legal advice is never a mere formality. It is an important step to ensure that the recipient receives impartial and reliable legal advice before committing him or herself. It also provides the lawyer with an opportunity to consider the client’s situation, including questions of capacity and undue influence.”

Because the father had never obtained independent legal advice regarding the transfer agreement, the court held that the agreement was not final as it had been contingent on the obtention of such advice, stating:

“In this case, the [son] has established that there was an oral agreement, however, that agreement was contingent upon a further step of independent legal advice. That step never occurred, so the agreement was not finalized.”

As a result, the court dismissed the son’s claim.

The son appealed to the Saskatchewan Court of Appeal, arguing that the trial judge had erred in finding that the agreement was contingent on the father receiving independent legal advice.

Court of Appeal Upholds Lower Court’s Determination

After reviewing the trial judge’s reasons, the Court of Appeal concluded that the judge had not made a palpable error in finding that the agreement between the father and the son had been contingent on the father receiving independent legal advice.

As a result, the court dismissed the son’s appeal.

The son further appealed to the Supreme Court of Canada, which refused to hear the appeal.

Get Help

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.