Generally, a solicitor who accepts instructions to draft a will owes a legal duty of care to an intended beneficiary under that will. This duty of care will be breached if that intended beneficiary was deprived of a gift under the will due to that solicitor’s negligence. For example, if a solicitor in British Columbia fails to ensure a will is witnessed correctly , and the will is therefore void, someone that would have been a beneficiary under the will can bring a claim for damages against that solicitor. The claim would be based on the solicitor’s failure to use reasonable care, skill and diligence in attending to the witnessing of the will.

The duty of care to intended beneficiaries is known as the “third party beneficiary rule”. The rule is exceptional, in that lawyers usually only owe a duty of care to their client (i.e., the will-maker). Under the third party beneficiary rule, there is not a broad and general duty to act in the best interests of the third party. Instead, there is only a duty to use proper care in carrying out the will maker’s instructions for conferring a benefit on the third party. That beneficiary will have no claim where these interests conflict (for example, where the will-maker gave instructions to create a new will that would disinherit a particular beneficiary).

Does A Disappointed Beneficiary Have A Claim Against A Solicitor, If That Solicitor Prepares A New Will For A Testator That Lacks Capacity, or is Unduly Influenced?

The principle becomes difficult to apply, however, where the will-maker’s actual intentions are not clear, or are questioned after being given. In cases of alleged undue influence of a will-maker, or where the will-maker may lack mental capacity,  the will-maker’s true intentions may not be evident. If either circumstance seems plausible, the solicitor taking instructions or executing a will has a responsibility to “probe the mind” of the will-maker, to ensure the proposed will remains a true expression of their intent.

So, where does this leave a disappointed beneficiary, when the solicitor drafting the will fails to identify incapacity, or that the will-maker was being unduly influenced? Can that beneficiary successfully claim negligence against that solicitor, based on the third party beneficiary rule?

In British Columbia, the answer appears to be no. In the recent case of Johnston Estate v. Johnston, 2017 BCCA 59, the BC Court of Appeal upheld the decision of a trial judge that had “struck out” certain claims made against a solicitor by a disappointed beneficiary. The trial judge considered the claim against the solicitor to have no reasonable chance of success.

The disappointed beneficiary had alleged, among other things, that:

(1) the solicitor for his deceased father had owed him a duty as a beneficiary under his father’s previous will;

(2) that the solicitor had breached that duty when he took instructions for a new will from the father that were inconsistent with the provisions of the old will; and

(3) that his father had lacked mental capacity when he gave instructions for the new will.

After reviewing the case law on the third party beneficiary rule in cases where solicitor negligence was alleged, the Court of Appeal ultimately held that, at para 37:

…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.

The Court of Appeal noted that beneficiaries under a former will have other remedies available to them in such circumstances. For example, a former beneficiary could apply to block probate of the will where testamentary capacity is not established. The estate of the deceased could bring a claim in negligence against a solicitor, where the estate could prove it had suffered a loss. Such claims could also be brought by beneficiaries or intestate successors themselves, on behalf of the estate, pursuant to s. 151 of the Wills Estates and Succession Act.

The “third party beneficiary” rule was also addressed by the Court of Appeal in another recent decision, Byrn v. Farris, Vaughan, Wills & Murphy LLP, 2017 BCCA 454. In that case, a disappointed intestate beneficiary made a claim of negligence against a solicitor under the rule. She alleged that the solicitor had failed to carry out her deceased mother’s instructions to sever a joint tenancy, which meant the property did not form part of her mother’s estate.

However, the Court of Appeal dismissed her claim entirely. In so doing, the Court affirmed its reasoning from Johnson Estate v. Johnson: if the estate itself can bring an action against a solicitor that would compensate the beneficiary, then the disappointed beneficiary will have no claim against that solicitor.