Q: In the early 1990s, papers were drawn up relating to a family matter by a lawyer who we believe was suspended from practising law. How does one find out if the document is valid?
A: First, the fact that a document was drawn up by a person who was not qualified to practise or who had been suspended would not automatically render the document invalid. Should the matter end up in court, a judge would have to examine the document in question to determine its validity.
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You don’t mention what the document was. Let’s say it was a will. A judge will first look to determine whether the document clearly sets out the wishes of the deceased. Then the court will look to see if the will is properly executed, for example, did the testator sign in the presence of two witnesses?
The courts in most provinceshave the power to overlook deficiencies in a will if thereis no evidence that the deceased was pressured and thathe had the mental capacity and that the lack of formalities is purely a matter of oversight.
If the agreement is between a husband and wife and deals with child custody, support and property division, then under the Saskatchewan Family Property Act, spouses must separately acknowledge that they understand and consent to the agreement for it to be binding. This acknowledgement must be before a lawyer not involved in preparing the agreement.
The law is similar in most provinces, though again the courts can consider agreements that do not meet this formality and decide what force it should be given.
Last year the Supreme Court of Canada also looked at the question of when a separation and property division agreement could be overturned. The wife alleged the agreement was unfair.
“Parties must take responsibility for the contract they execute as well as for their own lives,” the court said. Only when circumstances of the parties changed dramatically from what was anticipated when the agreement was signed should a court consider reopening an agreement, the Supreme Court said. It did not give examples of what it considered changed circumstances.
So again, in a separation and property agreement, a court is going to ask whether the agreement is fair, whether each spouse understood their rights and whether eitherwas pressured into entering the agreement.
We do not know why the lawyer may have been suspended in your situation. Obviously, in assessing any agreement, a court will also look to determine if the advice given by the lawyer was valid.
While suspensions for incompetence are few, if in fact that was the case, it may affect any agreement drawn by that person.
As to your particular agreement, I suggest you consult another lawyer to obtain an opinion as to its validity.
Even if the agreement is deemed valid, there are consequences for a person acting as a lawyer when suspended from practice. Essentially, such actions amount to a violation of the Legal Professions Act and should be reported to the provincial law society. It would also be able to tell you whether the individual was indeed suspended at the time.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
