By Sheila Morris, Wills and Estates Litigator
With the “back to school” season upon us (although it looks and feels very different this year), it is a good time to hit the books and review the latest developments in solicitors’ negligence. This 4-part series will examine the essential elements of solicitors’ negligence, with a specific focus on the estates context. Cram now, and ace the test later!
PART 1 – Duty of Care
There are four elements to any negligence claim: duty of care, standard of care, causation, and damages.
Generally, a lawyer owes a duty of care only to his client. In the context of a will-drafting lawyer, this means that he or she has a duty to protect the testator from making any gifts of her estate that she does not actually intend to make.
Third Party Beneficiaries v Former Beneficiaries
In the wills context, a drafting lawyer also owes a duty of care to an intended beneficiary under the testator’s will. The lawyer will have breached this duty of care if, because of negligence like a drafting error, the intended beneficiary is deprived of the gift. This is referred to as the “Third Party Beneficiary Rule.”
The law is clear that a lawyer does not owe a duty of care to a beneficiary under a previous will who is then excluded under a subsequent will (the “Former Beneficiary”). If the testator had capacity at the time of the new will, the testator was entitled to make whatever changes she wishes, and the lawyer did not cause any loss. If the testator did not have testamentary capacity and the new will is not admitted to probate, then the previous will takes effect and the Former Beneficiary has lost nothing. It is thought that expanding a legal duty to include Former Beneficiaries would create inevitable conflicts of interest: a lawyer cannot act in the best interests of their client if they are concerned with the interests of others. In addition, lawyers may be reluctant to act for elderly testators who wish to change provisions of their will if they could also be liable for damages to Former Beneficiaries.
However, the case of Graham v. Bonnycastle suggests that a lawyer may owe a duty to a Former Beneficiary in specific circumstances. Where the solicitor has negligently excluded a beneficiary from a rightful bequest, contrary to the testator’s ‘true’ intentions, and the negligence remains hidden until the assets of the estate have been dissipated, the lawyer may be liable to the Former Beneficiary for any damages sustained.
The issue was revisited in Ontario recently in the case of Vincent v Blake, Cassels & Graydon LLP. This decision arises out of a motion for summary judgment and unfortunately does not determine the issue since the parties never proceeded to trial, but the court held that whether the defendant lawyers owed a duty of care to a Former Beneficiary was a genuine issue requiring a trial. Specifically, the court was compelled by the argument that the testator’s intentions were “aligned” or “identical” with the Former Beneficiary’s interests, and that what the testator intended was not what the beneficiary received.
There is no doubt that will-drafting lawyers owe a duty to their testator clients. However, would-be beneficiaries are not entirely shut out, and, in certain circumstances, may have a right to look to a drafting lawyer to recover their damages. While it is critical for lawyers to understand exactly to whom they owe a duty, it is also important that third parties know their rights and the options available to them.
Sheila Morris is a skilled wills and estates litigator, litigating will challenges, solicitors’ negligence claims, dependent support claims, and power of attorney disputes at various levels of courts across Ontario. For questions about solicitors’ negligence or wills and estates issues, contact Sheila Morris at email@example.com.
To read Parts 1-4, click on the links below:
 Graham v Bonnycastle 2004 ABCA 270 (Alta. C.A., leave to appeal refused) (“Graham v Bonnycastle”)http://canlii.ca/t/1hq66 at para 59
 Ibid at para 17
 Ibid at para 30
 Ibid at para 30
 Ibid at paras 56, 59, and 60
 2013 ONSC 980 (Ont. S.C.J.) (“Vincent v Blake, Cassels & Graydon LLP”) http://canlii.ca/t/fw5bv
 Ibid at para 43
 Ibid at para 44