The obligation of a testator’s lawyer to potential beneficiaries in drafting a will or other estate planning documents was recently discussed in the Ontario Superior Court of Justice case of Vincent v. Blake Cassels & Graydon LLP. The case involved a motion for summary judgment to dismiss a negligence/breach of fiduciary duty action by a beneficiary against the testator’s lawyers in connection with the preparation of a will/estate freeze. The beneficiary, one of two siblings of the testator, claims that the lawyers failed to carry out the testator’s intention to treat both siblings equally. The case is interesting for the Court’s review of the status of the common law concerning when a testator’s lawyer may or may not have obligations to existing or potential beneficiaries.
As a general rule, and this will come as no surprise, lawyers do not owe a duty to beneficiaries. They do not act on behalf of beneficiaries and the lawyer’s obligation is to ensure that she or he carries out the instructions and intentions of her or his client, the testator. In most cases, the interests of a disappointed beneficiary and a testator will be in conflict, given that one decided not to include the other and the other is disappointed with the decision. The Court referred to caselaw setting out some very good reasons for not extending a duty to beneficiaries. Principal among these is the need for a solicitor to be free to make inquiries of a testator to determine testamentary intention and capacity without being hampered by some duty to those who may or may not benefit under the intended or a previous will.
However, the Court noted that in certain limited circumstances, a lawyer may owe a duty to beneficiaries as well as to the testator. That duty may arise where the interests of the testator and of the beneficiary are not in conflict but are aligned. Generally, this will arise where the issue concerns whether a potential beneficiary has been deprived because the lawyer failed to act in accordance with the testator’s “true” intentions. In such cases, the interests of the testator to benefit a beneficiary are the same as those of the beneficiary; i.e. to prepare the estate document as a prudent lawyer would in order to carry out the intentions of the testator. If the lawyer fails to do so such that an intended beneficiary does not receive an intended gift, she or he could face liability to the intended beneficiary. Such a scenario could arise, for example, where the drafting lawyer failed to properly carry out the intentions of the testator but a will is otherwise upheld because it meets the legal requirements for a valid will. Such cases are possible, if a rare, because while Courts will generally be loath to uphold a will that does not accurately express the testator’s intentions, where the consequences of not doing so are that a will fails, resulting in either an intestacy or a revival of a previous unsatisfactory will, the alternative may be to uphold the will and hold the drafting lawyer accountable.
In this case, the issue is whether the estate plan properly complied with what the parties agreed was the intention of the testator to treat her offspring equally and, if it did not, whether the drafting lawyers could be held liable to the affected beneficiary in negligence or as a result of breach of fiduciary duty. There were several factual issues that the Court determined would require a trial before that question could be answered.
Estates and Elder Law in Canada 