Will A Disappointed Beneficiary's Law Suit Against The Deceased's Lawyer Succeed?
Last Will and Testaments, like plans, change. Those changes mean increases to some and decreases to others. If a beneficiary's share of an estate decreases, often the beneficiary will be disappointed. If a beneficiary is disappointed, and sues the testator's lawyer, will the action succeed?
The answer is "it depends" on the particular facts of why the beneficiary's share was decreased. In the normal course, a testator's solicitor does not owe a beneficiary a duty to ensure the beneficiary receives any portion of the estate. However, if the solicitor acts negligently in ascertaining the testator's true intentions and the negligence causes the beneficiary to receive less, the law suit would succeed. A 2013 decision of the Ontario Superior Court demonstrates this principle.
In the case, the testator, a woman, passed away leaving a son and a daughter. Prior to her decease, the woman and signed two wills and completed an estate freeze. The son sued his sister claiming that she had unduly influenced their mother causing him to be treated unequally. He also sued his mother's solicitor claiming that they had not properly drafted the wills and implemented the estate freeze.
The solicitors moved for summary judgment claiming that the son lacked standing to sue them. That motion was dismissed on that grounds that the son was not challenging the second will but rather was claiming that the solicitor did not follow instructions to treat both children equally. The court ruled that since the son's interests were aligned with that of his mother, the testator, a trial judge could find that the solicitor was liable to the disappointed beneficiary. The motion judge stated:
[44] I cannot conclude at this stage, based on the evidence, that the Blakes defendants do not owe a duty of care to David and that David's claim is without merit. I agree with counsel for David's submissions that the majority of the case law relied upon by the Blakes
defendants involves cases where the plaintiff [page112] was a disappointed beneficiary under a prior will and he or she seeks to challenge the validity of a subsequent will. In those situations, the interests of the testator were clearly not aligned or identical to those of the beneficiaries. David is arguing that both the Blakes defendants and the Klasner firm failed to give effect to Orlie's intention to treat her two children equally. As such, David's interests would not be in conflict with those of his mother Orlie, as they both wanted David and Janice to be treated equally.
[45] David contends that this is not a situation where the Wills would fail and the estate then distributed in accordance with the terms of the prior wills from 2000. Rather, David argues that the Blakes defendants had instructions from Orlie to treat her children equally and they did not ensure that this happened and David is the only party to have suffered a loss by the Blakes defendants' failure to carry out Orlie's intentions to treat her children equally. Counsel for David argues that this does not mean that the Wills fail at all. David contends that there was not a proper valuation obtained regarding the value of the shares and the Blakes defendants were in a conflict position having a pre-existing solicitor-client relationship with Janice. David argues that if the Blakes defendants had followed Orlie's instructions properly and obtained a valuation of the shares at fair market value, they would have ensured that Orlie's children were treated equally rather than favouring Janice.
[46] I acknowledge that in situations where solicitors would be placed in direct conflict with their duty owed to a testator client, a beneficiary cannot assert a claim against the testator's solicitor; however, it is not clear on the facts of this case whether Orlie's interests are in direct conflict with David's interests or whether they are in fact "aligned or identical". This is clearly a triable issue as there needs to be a determination as to whether Orlie and David's interests are the same and whether what Orlie intended was what David and Janice received from the estate.
The key is the true intentions of the testator. If the solicitor failed to follow instructions and the beneficiary's interests align with the testator, the disappointed beneficiary's law suit may succeed.
Vincent v. Blake, Cassels & Graydon LLP, 2013 ONSC 980 (CanLII) https://www.canlii.org/en/on/onsc/doc/2013/2013onsc980/2013onsc980.pdf
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