What happens when a lawyer is retained by a testator to make a will, but that will is never made? While the testator (or their estate) may have a claim against the lawyer, do the beneficiaries of that unmade will also have a claim?
The Historical Origin of “Disappointed Beneficiaries”: White v. Jones
In this 1995 UK case by the House of Lords, the testator wished to revoke a prior will in which he had cut out his two daughters, and make a new will which would once again benefit them. This change was prompted due to a familial reconciliation after a prior conflict. The testator reached out to a solicitor by letter to explain his wishes.
However, the solicitor cancelled three appointments to meet with the testator in the course of three weeks, and subsequently went on holiday. A meeting was finally scheduled two months after the initial retainer, however, a few days before that meeting, the testator fell down while on holiday, as a result, died of a heart attack.
A new will was never executed due to the testator’s untimely death. As a result, the existing will did not benefit the daughters. The House of Lords decided it would be unfair for the daughters, who, but for the solicitor’s failure to draft the will in a timely manner, had lost out on their potential inheritance. As a result, they expanded the duty of care owed by lawyers to their clients, to include disappointed beneficiaries who are not direct clients.
The Leading Ontario Case of Hall v. Bennett
In Ontario, the law of disappointed beneficiaries was adopted and refined in the 2003 case of Hall v. Bennett Estate.
In that case, a testator, who was a patient at Hamilton General Hospital had instructed his social worker to call a lawyer, as he wished to make a will.
When the lawyer arrived at 10am, it was clear the testator was heavily sedated and near the end of his life. Nurses testified that the testator’s vital signs were nearly incompatible with life, and he was foregoing pain medication to be as lucid as possible.
The lawyer set to work to interview the testator, however, that testator could only remain conscious for five to six minutes at a time. Sixty-five minutes into the interview, the testator was drifting in and out of consciousness too frequently, and was in great pain. Nurses felt it was inhumane to deny him pain medication any longer.
The lawyer could not complete the interview and subsequently left. The testator died at 7pm that day.
In this case, the testator did not have a will and was estranged from his daughter and son. He did not wish to benefit them on intestacy, and wished instead of benefit a friend, Mr. Hall. When Mr. Hall found out about this will that never was, he brought a negligence claim against the solicitor as a disappointed beneficiary.
While Ontario Superior Court initially found in favour of Mr. Hall, focusing their analysis on whether the testator had testamentary capacity and whether the solicitor fulfilled his duty of care to the disappointed beneficiaries, the Ontario Court of Appeal overturned this decision. In doing so, they found that the analysis should have been on whether it was reasonable in the circumstances for the solicitor to determine the testator’s capacity.
The Modern Law of Disappointed Beneficiaries
Being that a claim of negligence against solicitors is a tort claim, the classic tort law analysis of duty of care and standard of care applies.
In determining the existence of a duty of care, Hall v. Bennet Estate has stated that the traditional two-step analysis set out in the leading case of Anns v. Merton London Borough Council (integrated into Canadian law by the Supreme Court in Cooper v. Hobart) applies.
The first step is to determine proximity and foreseeability. First, it must be foreseeable that the disappointed beneficiary would suffer financial loss as a result of the solicitor’s failure to draft a will. Second, there must be a sufficient degree of proximity between the solicitor and intended beneficiary.
If the first step is met, then the court must determine whether it is fair, just, and reasonable on a policy level that liability should be imposed in negligence on the solicitor to compensate the beneficiary.
If a duty is owed, the lawyer must act in line with the requisite standard of care of a reasonable and prudent lawyer.
Specific to the law of disappointed beneficiaries, a retainer agreement is required in order for a lawyer to owe a duty of care to the client. No duty is owed to a merely potential client, especially one who has not formally retained the lawyer.
Additionally, the disappointed beneficiaries are required to show their interest is “in harmony” with the testator’s, with the possibility of conflict. This means that if a testator had wanted to leave a cash legacy to a beneficiary, but that beneficiary instead wanted title to the testator’s house, the disappointed beneficiary claim will likely be unsuccessful.
The facts of White v. Jones and those of Hall v. Bennett are sharply contrasting. In the former case, it would certainly be unfair to the beneficiaries to lose out on their inheritance through no fault of their own. In the latter case however, it was not the solicitor, but rather the circumstances and the testator’s own delay in estate planning which can be said to have caused the beneficiary’s disappointment.
This goes to show that even though White v. Jones has expanded the class of potential claimants against a lawyer in a will drafting scenario, the potential success or failure of this type of claim by disappointed beneficiaries will be determined on the specific facts of each case and whether the requisite tort-based test is made out.