Lawyer's mistake/misunderstanding and how to deal with it
This is a discussion on Lawyer's mistake/misunderstanding and how to deal with it within the Attorneys & Legal Ethics forum, part of the ATTORNEYS, COURTS, LITIGATION category; Dad recently passed away, and now we find that the lawyer made a huge mistake...or he misunderstood...to put it mildly. ...
|POST NEW QUESTION|
||Thread Tools||Search this Thread||Rate Thread||Display Modes|
|Feb 21st, 2011, 01:41 PM||#1|
Join Date: Feb 2011
Lawyer's mistake/misunderstanding and how to deal with it
Dad recently passed away, and now we find that the lawyer made a huge mistake...or he misunderstood...to put it mildly.
Dad added me as P.O.A because his hands were very shaky and he was having problems signing things.
He had talked to the governement and found out that my little brother couldn't inherit more han $100,000 because he is on AISH.
Dad had me go back to the lawyer and have my name put on title as joint tenant so that it would make it easier for us when he passed away, and because that way the land would not become part of the estate...as my brother was already to get his life insurance and this would put him way over his limit.
He also wanted to ensure that his estranged wife would not be able to obtain said property...even though he had signed many other documents and written a new will, he still did not trust her or the courts.
I went back to the lawyer and explained this all to him. He printed out some forms and told me to have dad take them back to the bank where he had signed the P.O.A to have me put on title.
I had also shown the lawyer a copy of dad's new will at this time. He seemed confused as to how to divide the property, as dad had stated in his will that I would get 40% and my brother was to get 60%. I had no idea why this would confuse the lawyer.
If I was the owner of the land then the division would only include the "junk" laying around and the vehicles and such.
Dad had signed the P.O.A and personal directive at the bank in front of the banker and the commissioner for oaths. When it came time for the will the banker signed it but the commissioner pushed it aside stating that it didn't need her stamp on it...however, it did need her signature...but we only just found out after dad's death.
So now this will is null and void because of lack of one signature.
At 3:43 this A.M I finally figured out (after posting elsewhere in the forums asking about wills and land titles) what exactly our lawyer had done.
He had only added me onto title as P.O.A...not as a joint owner as dad had wished!
We have been confused, and I had posted elsewhere as I said because we couldn't understand why there was no instrument on the title saying that I was only P.O.A and holding it for whoever...apparently in Alberta this does not need to be shown on a title...if we would have seen something on the title then we could have argued/changed it before dad passed away.
Nothing was said and it was not explained to me (properly anyway) that I was only being added as P.O.A. Had that been explained to me I would have asked the lawyer to change that before sending it out.
Dad and I believed that this was a "regular" joint tenancy, as this is what we had asked for, and had explained to the lawyer.
Dad's previous title shows an instrument that says his estranged wife had released the Dower Rights so we assumed that if I was only added as P.O.A that this should show as well...wrong...not in our province.
Now because of this, and the lawyer's insistance that we go with the old will,( even though it was destroyed by our dad) we are going to lose everything.
The old will states that dad's estranged wife and her family get 3/4 of the property...even though she had signed a release of Dower Rights and a separation agreement...she still wins.
Dad told me years ago that the old will stipulates that if it is contested that the property will be sold and she gets it all.
However, as I have told the lawyer many, many times...dad burned his old will.
As P.O.A, I had the right to see the old will so that I wouldn't inadvertantly sell an item that was to be given as a gift.
I had asked dad many times (to the point of him getting angry and yelling at me) about the old will...and he continuously stated that he had burned the *bleepity bleepin* thing.
I told him that the lawyer or someone else would have a copy and he said "NO! I had the only copy. Why aren't you listening to me little girl?"
Apparently this does not seem to matter to the lawyer.
I have read on a hundred different sites or so that if a person destroys their will by: burning, shredding, or otherwise damaging it, that it becomes null and void.
For some reason our lawyer does not seem to think this is the case.
My brother and I want to fight the old will but the lawyer thinks we should go with it.
We are very confused. Why should we go with a will that states we get less than the woman he left (because she forged his signature at too many places and has a warrant out for her arrest in our province...she broke the rules of the separation agreement by getting a cell phone with a 3 year contract in my dad's name just before he passed away.Found this out when I cancelled his home phone and they asked if I wanted to cancel the cell as well...he didn't have a cell) and have to deal with this woman and her family after our dad tried his hardest to get her out of his life?
If that will is opened then we can no longer contest it as she then has the right to sell it and keep all the money.
I'm not sure how this will thing works...my dad believed that his was the original...he believed that by burning it that it would make it null and void.
Now we find out that there are copies of it all over the place. The estranged wife has a copy, her daughter has a copy, and the lawyer they used has a copy (or the original...we don't know)
My dad was unaware of this. He believed his was the *real deal* and so he destroyed what he had.
Did my dad pay out good money for nothing? Did he sit in lawyers offices and banks signing papers for nothing?
My dad was a worrier...and apparently for good reason.
The woman called me shortly after dad passed away and she said that she wanted me to know that she never remarried. Does this mean that she may have gotten a divorce from him without him knowing? Because of the separation agreement I know this is legal for her to do. How do I find out if she did?
If there was a divorce then that voids that will correct?
Shouldn't the Release of Dower rights and the separation agreement (both of which where written after the old will was destroyed) somehow come into play?
They both say she gives up her rights to all his property now and in the future etc, they state that it's a conflict of interest for her to be the executrix as stated:
In the Dower Release:
I hereby release to my husband, all my life estate and other dower rights in the above described lands, and I hereby discharge my said husband, his heirs, executors, administrators, from any claim for the dower under the dower act, in respect to said lands.
In the separation agreement:
7.1 ...neither party shall have any further claim, the one against the other, as to the matters of personal property,it being their intention that the division of personal property is to be a final and binding division.
9.1 R.R.S.P(s)....without any further claim by the other party.
10.1 ...Give up any interest they each have in any employment pension or any plan...Wife specifically waives any interest she may have in the plan...
12.1 The parties....give up any claim to dower rights that either may have against the other now and in the future.
13.1 The wife/husband...shall NOT apply to the status, ownership, and division of their property, whether real or personal....the within agreement shall be the sole determinant of the status, ownership, interest, and division...
14.1 In consideration....each party waives and releases any and all rights and claims of EVERY KIND, nature and description both at law and in equity that the other may have or acquire as spouse or surviving spouse in the property, assets or estate of the other.
17.1 The wife and husband give up any claim to the estate of the other. This means any claim under any law of: ...
Can't any of this help with fighting the will? Shouldn't the lawyer use any of this information to make a descision regarding opening up that old will?
These papers were signed by both of them after the destruction of the old will.
Is there anything that can be done about the mistake/misunderstanding that the lawyer made regarding said title?
Any and all opinions, facts, etc are welcome.
Thank you for taking the time to read this.
|Feb 21st, 2011, 04:21 PM||#2|
Top Level Member
Join Date: Dec 2009
Re: Lawyer's mistake/misunderstanding and how to deal with it
I wish to inform you that Will is formed so that property may be distributed by persons wishes. In this regard you may have to challenge wiIl on the ground that Will was incorrectly drafted and therefore your father consent to Will was not free and you may demand that Will must not be upheld and property distributed. Court will then decide the matter after evidence due consideration.
|Bookmark & Share|
This thread has 1 reply and has been viewed 672 times
|Thread Tools||Search this Thread|
|Display Modes||Rate This Thread|
|Thread||Thread Starter||Forum||Replies||Last Post|
|Lawyer Admits ‘Horrible Mistake,’ Becomes 20th to Plead in Probe||WSJ Law Blog||Law News||0||Apr 21st, 2011 06:10 PM|
|lawyer misunderstanding/ case conference breif||tbtAngel||Child Custody & Support||1||May 29th, 2010 11:19 AM|
|Should we involve a lawyer or just deal with the hospital?||Unregistered||Medical Malpractice||1||Jan 31st, 2009 05:51 PM|
|My lawyer made a mistake and is sueing ME for for it||Unregistered||Other Real Estate Law Matters||3||Apr 16th, 2008 10:22 AM|
|Innocent mistake, she lost her passport. Would she be detained?||Unregistered-ANON||Deportation & Removal Issues||4||Oct 22nd, 2007 03:59 PM|