Our review of estate related solicitors’ negligence cases continues:

2015: Kavuru v. Public Guardian and Trustee

A plaintiff sued the Ontario Public Guardian and Trustee for solicitor’s negligence for its presentation of an appeal to the Divisional Court. The Court concluded^[1] that the PGT cannot be sued for solicitor’s negligence as the PGT did not function as the plaintiff’s lawyer; the PGT was the plaintiff’s substitute decision maker. The PGT had counsel who appeared on its behalf. Even if the Plaintiff had sued the right person, the PGT’s counsel owed its duties to the PGT and not to the plaintiff. Therefore, the plaintiff had no cause of action against either the PGT or its counsel for solicitor’s negligence.

2017: Johnston Estate v. Johnston

This case^[2] 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 estates 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 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. The deficiencies were serious and hindered the Court’s ability to accurately discern certain of [the son’]s defences and claims.^[3]  While the son’s pleadings were “plainly embarrassing and deficient” for many reasons, Justice MacKenzie agreed that the son should be given a reasonable opportunity to amend them, but for one exception. 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” and she 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.

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 [1999] 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 son appealed and the Court of Appeal opined that the motion judge was correct in law when she found the son’s claims were bound to fail:

[37] 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.

[38] 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]

This case 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 the current Will of the deceased where the drafting solicitor has been negligent. As noted above, the solicitor has a duty to competently fulfill the testator’s instructions. If the lawyer was careless in the drafting or execution of the Will (for example making a mistake in the drafting of the Will, not drafting the Will in a timely manner when the testator was ill or dying etc.) the beneficiaries could suffer a loss and could have grounds for a claim against the drafting solicitor.

See you next Blog!

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[1] 2015 ONSC 7697.

[2] 2017 BCCA 59 [Johnston Estate]

[3] Johnston Estate v. Johnston, 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.

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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.