BC Court of Appeal Confirms No Duty Owed by Drafting Solicitor to Beneficiaries under Former Will: Johnston Estate v. Johnston, 2017 BCCA 59 (CanLII), http://canlii.ca/t/gx8xd
This case looks at striking pleadings for failure to disclose a reasonable cause of action and severing certain claims from a Will challenge. Specifically, the British Columbia Court of Appeal looked at whether it was “plain and obvious” that there is no duty of care imposed on a drafting solicitor (taking instructions from a testator for a new Will) to protect the interests of beneficiaries under a former Will?
In 2007, the deceased and his wife had executed mirror Wills under which they left their entire estate to each other, with a gift over to their son on the death of the survivor (“2007 Will”).
After his wife died, in 2012 the surviving spouse, the deceased instructed his lawyer to prepare a new Will, unknown to his son (the 2012 Will). Under the 2012 Will, instead of everything being left outright to the son, $100,000.00 was left to a church and the residue was to be held in a discretionary trust for the son’s lifetime. The Public Guardian and Trustee of British Columbia (“PGT”) was appointed as the trustee of the trust.
When the PGT brought a probate action to prove the 2012 Will (the PGT was the committee of the estate under the Patients Property Act), the son responded and counterclaimed. His pleading was “32 pages in length and contain[ed] a rambling mixture of allegations of fact, evidence and argument.” The PGT brought a motion for orders striking the son’s pleading with leave to amend, or alternatively that his response and /or counterclaim be severed and stayed, among other relief.
The judge at first instance, Justice MacKenzie, described the son’s response and counterclaim as containing:
vague and repetitive allegations, other parts, particularly of the Response, are replete with evidence and argument, and still others are a flawed mingling of such shortcomings. Overall, [the son’]s Response is unduly drawn out and even discursive at times, and both pleadings are laden with extraneous and collateral content. The deficiencies are serious and hinder the Court’s ability to accurately discern certain of [the son’]s defences and claims.
Justice MacKenzie also noted that: “it is unduly burdensome for the Court to perform a forensic evaluation of [the son’s] pleadings, approving or disapproving of them line-by-line. . . . Nor is it the role of the Court to rewrite [the son’s] pleadings for him, and I do not propose to do so.” The son’s pleadings were “plainly embarrassing and deficient” for many reasons, and with one exception, Justice MacKenzie agreed that the son should be given a reasonable opportunity to amend them. That one exception was the claim based on the allegation that the lawyer owed the son a duty as a beneficiary under the 2007 Will to not carry out the father’s subsequent instructions that were inconsistent with the provisions of that Will. Her Honour found that such claims were “doomed to fail” and “hopeless in law”.
Justice MacKenzie also ordered that the proof of Will action brought by the PGT be severed and tried separately from the son’s counterclaim and that it be limited to the issues of testamentary capacity, undue influence, and due execution. The son’s other claims (which were difficult for the Court to discern but appeared to be equitable claims for breach of trust, unjust enrichment, fraudulent conveyance and negligence claims against the PGT and its staff, among others) would be heard after.
The son appealed, arguing that the motion judge erred by striking the claim against the solicitor based on the duty owed to him and erred by severing and staying the remainder of his claims.
The test for striking a pleading on the basis it fails to disclose a reasonable cause of action was described in Hunt v. Carey Canada Inc.  2 SCR 959. Claims should only be struck out if it is “plain and obvious” that they will fail.
Justice MacKenzie had struck the claim as there was “plainly no reasonable claim on the ground” that an alleged duty was owed by the drafting solicitor to the son as a beneficiary of the father’s 2007 Will not to carry out the father’s subsequent instructions that were inconsistent with the 2007 Will.
The motion judge relied on Graham v. Bonnycastle 2004 ABCA 270 (leave to appeal to SCC refused) where the Court undertook a comprehensive review of the existing jurisprudence on solicitor negligence. The majority recognized that imposing a duty of care on solicitors in favour of beneficiaries under a former will would create untenable conflicts of interest and make solicitors reluctant to act for elderly testators looking to change their testamentary arrangements. The Court also referred to Korpiel v. Sangunetti  BCJ No. 1048 (SC) where it was also determined that solicitors owe no duty to beneficiaries beyond the competent fulfillment of the testator’s testamentary instructions.
The Court of Appeal opined that the motion judge was correct in law when she found the son’s claims were bound to fail:
 I agree with the reasoning in Graham v. Bonnycastle and I would adopt it: there is no justification for imposing a duty on solicitors taking instructions from a testator for a new will to protect the interests of beneficiaries under a former will. To impose such a duty would put the solicitor in an obvious and untenable conflict of interest; the result would be unsustainable and unsupportable at law. As a duty of care is a crucial element of a negligence claim, it was “plain and obvious” [the son’s] claims in negligence, based on the duty described, were bound to fail. The judge was correct in concluding that his claim was hopeless in law.
 Similarly, a claim for breach of fiduciary duty has no prospect of success in the absence of a recognized fiduciary duty. I agree with Taylor J.’s conclusion in Korpiel that it is only in discharging a solicitor’s duty to his client that it can be said that a parallel duty is owed to those persons the client wishes to benefit. In other words, any duty owed by a solicitor to a beneficiary in a will must mirror the duty owed to the testator: the duty to competently fulfill the testator’s instructions. Thus, a solicitor cannot owe an independent fiduciary duty to the beneficiary of a will, for, if the testator’s instructions were to conflict with the beneficiary’s interests, the solicitor would be unable to avoid conflicting duties to both parties.[emphasis added]
The Court of Appeal also agreed with the motion judge’s decision to sever and stay parts of the son’s claim. To prove a Will, the propounder must prove, in addition to testamentary capacity that the Will was properly executed and the testator knew and approved the contents of the Will. These are focused issues and the other issues raised by the son were complex and far-reaching. The Court of Appeal found that the motion judge’s decision was grounded in clear reasoning.
This case further confirms that a drafting solicitor of a new Will owes no duty of care to a beneficiary under a former Will. This of course must be distinguished from cases brought by beneficiaries under a current Will of a deceased testator where the drafting solicitor has been negligent. A solicitor has a duty to competently fulfill the testator’s instructions. If the lawyer is careless in the drafting or execution of a Will, the beneficiaries could suffer a loss and could have grounds for a claim against the drafting solicitor.
N.B. For more information on solicitor negligence in the estates context, see my journal article in the Advocates Quarterly, “Solicitor’s Negligence: Estates and Trust”,  45 Adv. Q. 102.
 2017 BCCA 59
 2016 BCSC 1388 at para. 17. The son was represented at the hearing by a lawyer. It is unknown if the lawyer or the son drafted the pleadings.