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...