The Disappointed Beneficiary

The Supreme Court of Canada has cautioned all counsel that, amongst other matters, we must be skillful and careful, advise our clients of all matters relevant to our retainer and protect the interests of our clients. However, when it comes to drafting estate documents, does a duty of care extend to beneficiaries who may be disappointed by a Will that is found to be invalid?

This body of case law begins to develop in the 1979 English decision in Ross v. Caunters1. In this decision a solicitor prepared a Will for the testator and sent it to the testator for her to attend to execution. The solicitor failed to warn the testator that her husband could not be a witness to the Will as it would render her husband's gift void. The Court found this to be negligent on the part of the solicitor and found the solicitor to be liable to the husband.

The English Courts considered these issues again in 1995 when a prospective beneficiary sued the testator's solicitors for negligent delay in preparing the testator's new Will2. In White, the testator had an unfortunate falling out with his children and had a Will drafted that cut them out entirely from the estate. Fortunately, the testator and his children mended their differences and the testator gave his solicitor instructions on July 17, 1986 that he wanted a new Will created that included his children. The solicitor did not make an appointment with the testator to have his new Will executed until September 17, 1986 (and did not begin the drafting process itself until September). As fate would have it, the testator passed on September 14, 1986 and was not able to execute a new Will. Interestingly, the Court awarded damages to the prospective beneficiary noting that "the only person who may have a valid claim has suffered no loss, and the only person who has suffered a loss has no claim." It is an important practice point that Courts have held that a two month delay in preparing a Will can constitute negligence.

The rule in White was later adopted by the Saskatchewan Court of Appeal in the Hickson v. Wilhelm3decision. The unfortunate lawyer in this decision failed to ascertain that farmland that was the subject of certain bequests was owned by the testator's corporation and not the testator himself and thus the bequests failed. The Court found the lawyer's actions to be negligent and awarded damages to the disappointed beneficiaries.

The Alberta Court of Appeal was required to consider the disappointed...