Friday, June 24, 2011

Rowsell v. MacKinnon

I don’t encourage people to write their own wills. But what’s worse than writing your own will? If you’re not a lawyer or notary public, writing someone else’s will. This is as true for members of other professions as for anyone else.

A recent decision in Newfoundland and Labrador illustrates why.

When Gidues Sacrey decided to change his will to leave his friend Toni Rowsell a gift of $100,000 he asked his accountant, Mr. MacKinnon, to write his will for him. Mr. MacKinnon was reluctant to do so, suggesting he see a lawyer. But Mr. MacKinnon relented and prepared a new will in accordance with his instructions. He, or someone at his accounting firm, used Mr. Sacrey’s then current will, made in 1998, as a precedent. Although Mr. Sacrey had at one time employed lawyers for his wills, the one he then had does not appear to have been professionally drawn.

The accounting firm made a couple of key changes to the will. One change was to add a gift to Ms. Rowsell. The other change was in the attestation clause, which is near where the will-maker and the witnesses sign a will. The 1998 will said

SIGNED published and declared by the above-named GIDUES SACREY the TestatOR as and for hIS last Will and Testament, in the presence of us both present at the same time, who at hIS request and in hIS presence have hereunto subscribed our names as witnesses.
The new will, made in 2004, was a little different:

SIGNED published and declared by the above-named GIDUES SACREY the Testator as and for his last Will and Testament, in my presence, who at his request and in his presence have hereunto subscribed my name as witnesses.
Do you notice the differences? The 2004 will refers to the will being signed “in my presence” rather than “in the presence of us both present at the same time.” It refers to subscribing "my name" intstead of "our names."

I suspect the difference in the wording of the attestation clause would not have been fatal. The bigger problem is that Mr. MacKinnon arranged for one person in his firm to see Mr. Sacrey when she went to Gander where Mr. Sacrey lived. She took the will to him and witnessed him sign it. She was the only witness.

Unfortunately, the will being witnessed by only one witness, did not comply with the formalities for signing a will in the Province of Newfoundland and Labrador. It was invalid.

Fortunately, Mr. Sacrey wanted changes to his will in 2005. If the new will had been properly witnessed, the problem would have been fixed. Unfortunately, Mr. Sacrey’s accountant agreed to make the changes, and the will in 2005 was also signed by only one witness. The 2005 will, which also contained a gift to Ms. Rowsell was also invalid.

The accounting firm billed Mr. Sacrey for the wills, but after he called, reduced their bill by the amount they charged for writing and witnessing the wills.

The defect in the signing of the wills came to light after Mr. Sacrey’s death. It was then too late to fix, and his 1998 will was his last valid will, with the result that Ms. Rowsell was not entitled to the $100,000 that Mr. Sacrey intended for her to receive.

Ms. Rowsell sued Mr. MacKinnon and his firm.

Canadian courts have held lawyers who were negligent in preparing wills responsible to compensate those whom their clients intended to benefit if as a consequence of lawyer negligence the gifts to the intended beneficiaries are ineffective.

But should the same principles that apply to lawyers also apply to accountants, who are not, after all, legally trained? Should accountants be held to the same standard as lawyers if they agree to prepare wills for their clients?

Mr. Justice Handrigan of the Supreme Court of Newfoundland and Labrador Trial Division (General), in Rowsell v. MacKinnon, 2011 NLTD 36 (CanLII), held that the same principles apply, and he held Mr. MacKinnon to the same standard as a lawyer. He wrote at paragraphs 74 – 75:

[74] Standard of care in negligence actions is the degree of care that a reasonable person should exercise; or as I said earlier in these reasons, if duty of care underpins liability between plaintiff and defendant in negligence actions, standard of care defines its scope. I hold Mr. MacKinnon not to a standard of perfection but to what would be expected of an ordinarily competent solicitor in these circumstances. 
[75] First of all, let me say why it is the appropriate standard for Mr. MacKinnon who is an accountant and not a lawyer: Mr. MacKinnon is a professionally trained accountant, who achieved the highest level of certification in his profession. He practiced public accounting at that level for thirty-five years and had access to Mr. Sacrey business and personal affairs because of his professional status. Mr. MacKinnon understood by his background and training how to engage with clients, the limits of the retainers he received, his clients’ and his own levels of competence and the extent to which his clients relied on him for professional services. He also understood that he was qualified to provide accounting, not legal services and most importantly he understood that it was wise to decline work he was not qualified to do.

[76] Yet he undertook legal work for Mr. Sacrey despite all these considerations. It is true that he recommended that Mr. Sacrey retain a lawyer to change his will in 2004 and that Mr. Sacrey objected. But Mr. MacKinnon relented and he did the work when he knew better. I expect that Mr. MacKinnon wanted to placate Mr. Sacrey and that is why he gave in, just as when the firm wrote off the $650 fee for the wills. Mr. Sacrey relied on Mr. MacKinnon to do his when, and when he agreed to perform it Mr. MacKinnon also agreed to do the work to the standard a lawyer would have done in the same circumstances, including getting them executed properly.
Mr. MacKinnon and his firm are required to pay Ms. Rowsell $100,000 plus interest and costs.

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