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Solicitor’s Negligence in Estates and Trusts Context – No. 8: Case Review: McCullough v. Riffert & Barbulov v Huston, 2010

In our prior blogs, we have looked at the Lawyer’s Duty of Care, Standard of Care, Evidence, Causation and Damages, and now we will start to review some notable Solicitor’s negligence cases.

2010: McCullough v. Riffert

In the 2010 case of McCullough v. Riffert[1] the testator died 10 days after giving instructions to a lawyer for his will, which was never executed. The testator’s niece would have received his entire estate under his new will. Instead the testator’s three estranged children became entitled on intestate succession. The niece sued the lawyer in negligence as the “disappointed beneficiary” for not preparing the will and not having it executed before her uncle died. While the testator appeared ill for undiagnosed reasons and was emaciated, no medical evidence was called at trial because the testator refused to seek medical advice.[2]

The lawyer had previously acted for the testator on his divorce and his house purchase. She was not shocked by his appearance and did not feel he was gravely ill. Her notes indicated that the testator said that since he was no longer working as a firefighter, he was not as hungry and did not feel like eating as the explanation for his weight loss.[3] The testator was planning a visit to his niece in a few months and wanted the will prepared before then, otherwise there was no hurry. Three days later the lawyer mailed a draft will for review and further information and instructions were required from the testator. He never provided the missing information. The testator died just 10 days after visiting his lawyer.

The Court referred to the factors set out in Rosenberg Estate v. Black[4] and concluded that the lawyer met the standard of care and was not negligence based on the following considerations:

  • The lawyer acted expediently as an appointment was arranged at the lawyer’s office within one week of the niece’s telephone call with the lawyer.  The lawyer prepared a draft will three days later and sent it to her client for review. The lawyer made notes in her file that the testator wanted the will to be signed by a certain date, about two and a half weeks after the initial interview.
  • The testator did not express any urgency, other than his desire to have the will done before his proposed trip to Texas.
  • The lawyer did not see the testator in the dishevelled physical state he had been in prior to his visit with the lawyer. The testator came to the lawyer’s office by walking in with the assistance of a cane and with some help from his niece.  He was dressed in a track suit and a jacket.
  • The lawyer asked if he had seen a doctor and the testator said no and she made note of his explanation. There was no diagnosis that he was subject to a terminal illness.  This was not a visit to the client’s hospital or palliative care bedside.
  • The testator did not call back to advise as to the possible alternate executor or to inquire if the will was ready.
  • When the testator died ten days later it was a shock to his family including the niece. She was taken aback and not expecting it.[5]

Justice Mulligan concluded also that there is a “continuum” between a client who presents without any particular concerns regarding health or age and a client who is clearly on his or her death bed. To fail to prepare a will quickly may fall below the standard of care for a reasonably competent solicitor depending on all the facts in this continuum.[6]

2010: Barbulov v Huston

The plaintiff moved for summary judgment on a claim of solicitor’s negligence. [7] The plaintiff was named as attorney in his father’s power of attorney (“POA”). When the father was admitted to the hospital after he suffered severe brain damage due to lack of oxygen, he was not able to communicate and there was no medical cure for his loss of cognitive abilities. The physicians asked if there was a power of attorney. The plaintiff says he reviewed the POA and felt it did not reflect his father’s wishes so he told the hospital there was not one.

The physicians commenced an application to the Consent and Capacity Board to determine the father’s best interests and a plan of treatment. At the outset of the hearing the plaintiff produced the POA and the treatment plan was revised with reduced medical intervention to reflect the father’s wishes in the POA. The plaintiff appealed to the Ontario Superior Court of Justice and argued that the POA did not reflect his father’s wishes: he was at the meeting where his father signed the POA and that the lawyer never discussed the POA with his father, nor did his father read the POA as he could not read English.

Brown J. on appeal found that there was no evidence that the father was aware of the terms in the POA that he signed. Brown J. concluded that as there was no valid POA he was required to determine under section 21(2) of the Health Care Consent Act what was in the best interests of the father. He directed the plaintiff to give or refuse consent to treatment for his father in accordance with the original treatment plan proposed by the physicians. The plaintiff sued the lawyer who drafted the POA for the legal expenses incurred by him in prosecuting the appeal.

The Newbould J., on the summary judgment motion, applied the Anns v. Merton London Brough Council[8] adopted in Kamloops v. Nielson,[9] and Cooper v. Hobart,[10] to determine if there was a duty of care owed to the plaintiff attorney. The Court noted that solicitors have been found liable to a “disappointed beneficiary” but that these cases cannot be said to be analogous: “A designated beneficiary is someone with an independent benefit or interest who can reasonably be seen to be harmed if the solicitor is negligent. There is no benefit or interest accorded to an attorney in a power of attorney.” Newbould J. also declined to find a new duty of care as there was not sufficient proximity to impose a duty of care.[11]

While the Court did not find a duty of care owing, it went on to discuss if there had been a duty of care, no negligence could be found on the evidence as both the recollection and testimony of the plaintiff and the lawyer were given little weight: “I am not satisfied that the plaintiff has established that his father had wishes regarding the terms to be included in the power of attorney, that those terms were provided on his behalf by the plaintiff to [the lawyer] and that [the lawyer] drew a power of attorney conflicting with what he was told the father wanted.”[12]

See you next Blog!

[1] Supra note 39.

[2] Ibid at para 20.

[3] Ibid at para 26.

[4] Supra note 16.

[5] McCullough, supra note 39 at para 60.

[6] Ibid at para 62.

[7] Barbulov v Huston, 2010 ONSC 3088 [Barbulov].

[8] [1978] AC 728.

[9] [1984] 2 SCR 2.

[10] [2001] 3 SCR 537.

[11] Barbulov, supra note 69 at para 20-22.

[12] Barbulov, supra note 69 at para 42.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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