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 four-part series will examine the essential elements of solicitors’ negligence with a specific focus on will-drafting lawyers. Cram now, and ace the test later!
The fourth and final installment in this series examines loss quantification, also referred to as “damages.”
It is a basic tenet of tort law that a plaintiff cannot recover more in damages than was caused by a defendant’s wrong, and a wrongdoer is responsible only for losses caused by foreseeable harm. Estate litigation tends to follow the civil litigation principle that the “loser pays,” so that a negligent will-drafting lawyer will be responsible for damages that arise as a result of their negligence.
Damages can also include the legal fees a party incurs in either initiating or defending a will challenge. Courts will order costs to be paid out of the estate in situations where the litigation arises out of some “fault” on the part of the testator (and not due to a lawyer’s negligence), whether it be the testator’s poor estate planning, incapacity, or an ambiguous testamentary document. So, while the costs properly incurred to challenge the probate of a new will may be paid for by the Estate at first instance, if the Estate thereby suffers a loss, the Estate may have a claim for the costs incurred over the complication.
Consequences of Settlement
What happens when parties to a will challenge settle their litigation out of court, and there is no judicial determination as to which will is valid? Based on the leading case law, it may seem at first blush that beneficiaries who settle will challenge litigation rather than have the issue determined by the courts cannot seek the Estate’s costs from the negligent lawyer. However, Vincent v. Blakes, Cassles & Graydon LLP (“Blakes”) suggests that the settlement of an estate litigation dispute does not raise any such estoppel issues. In finding there were genuine issues requiring a trial, the court seemed to be compelled by certain facts:
- the Minutes of Settlement specifically stated that the settlement was without prejudice to a party’s right to continue the litigation against the defendant lawyers, who had not been parties to the estate litigation;
- the language in the settlement documents affirmed that neither party admitted or ceded liability; and
- the will was never probated.
It remains to be seen whether courts will permit claimants who settle their will challenges to subsequently recover damages from the negligent will-drafting lawyer.
On the issue of estoppel, two additional cases may be instructive: Neuberger Estate v. York and Kot v. Kot.
In Neuberger Estate v. York, one of the parties sought to challenge a will after acting in her capacity as estate trustee under the terms of that will. One of the issues on appeal was whether the will challenge was barred by estoppel. The court held that the equitable doctrines of estoppel by representation and estoppel by convention do not lie to bar a challenge to the validity of a will. There is no jurisprudence to support the extension of the equitable doctrines of either type of estoppel to matters involving the validity of a will. In fact, there are policy considerations against it.
Once a testamentary instrument is probated, it is a pronouncement that the instrument represents the testator’s true testamentary intentions. The court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. The court owes that duty to testators, those with a legitimate interest in the estate, and the public at large. If the doctrine of estoppel were available to bar a party from determining the validity of a will, the court’s ability to discharge that responsibility would be in jeopardy.
Kot v. Kot is a cautionary tale in which the court declined to apply Neuberger Estate v York when the applicant sought to revoke a will after acting on it, including selling and disposing of estate property. The court in Neuberger was concerned that new evidence would arise which could bring the will into question, and did not want a delay to impede the court from considering the application. The court relied on the distinct facts in this case: the evidence supporting or contesting the validity of the will Kot v. Kot remained unchanged over a 4 ½ year period, and the evidence that the deceased had actually destroyed the will in question was weak.
While practicing lawyers must always be mindful of general negligence principles, there are specific rules and standards that apply to a will-drafting lawyer. The most commonly reported errors in the area of wills and estates include: failing to compare the lawyer’s will instruction notes with the will; failing to confirm the assets and debts of the testator; and, failing to confirm the marital status of the testator, each of which often result in claims against lawyers, and findings of negligence.
Likewise, as with all other areas of law, individuals who retain lawyers should know their rights, and understand that the professional they retain owes them a duty to work at the standard of a reasonably competent lawyer. In the context of wills and estates, testators must understand that their lawyer’s most basic task is to ensure that the will reflects their true testamentary intentions. And, beneficiaries and would-be beneficiaries ought to know that a drafting lawyer may owe a duty to them, as well as the testator, depending on the circumstances of the case.
As with all specialized areas of legal practice, there are nuances specific to will drafting, estate litigation, and solicitors’ negligence that can only properly be canvassed with a lawyer who dedicates their practice to the area.
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 1-3 click on the links below:
 Dhillon v Jaffer at para 28
 Mitchell v Gard (1863), 164 E.R. 1280
 Schnurr, Estate Litigation
 Graham v Bonnycastle 2004 ABCA 270 (Alta C.A.) (“Graham v Bonnycastle”), at para 27
 2013 ONSC 980 (Ont. S.C.J.) (“Vincent v Blakes, Cassels & Graydon LLP”)
 Since the decision arises out of a motion for summary judgment, it unfortunately did not determine the issue, but the court held that there were genuine issues requiring a trial.
 Neuberger Estate v York 2016 ONCA 191 (Ont. C.A.) (“Neuberger Estate v York”) at para 60
 Neuberger Estate v York at para 118.
 Kot v Kot 2018 SKQB 338 (Sask Q.B.) at para 15