The Unsatisfactory State of Professional Negligence for Defective Will-Drafting

March 31, 2017 David Freedman Uncategorized 0 Comments

My colleagues Natalia Angelini and Nick Esterbauer recently discussed the decision of the British Columbia Court of Appeal in Johnston v Johnston Estate, 2017 BCCA 59. This is a case dealing with solicitor’s negligence in respect of Will-drafting. It broke no new ground but was useful in reiterating that the scope of liability does not extend to disappointed beneficiaries under a prior Will to that drafted by the solicitor much as Eberhard J. held in Harrison v. Fallis, 2006 CanLII 19457 (Ont. S.C.J.). All of these judgments are ultimately derived from the acceptance of the propriety of using negligence as an action to remedy deficient Will-drafting by solicitors on the principle that the wrong would otherwise be without a remedy by the House of Lords in White v. Jones, [1995] 2 A.C. 207.

Unfortunately solicitor’s liability is an area very much in need of clarification. Thus far the Canadian law has developed to contain the scope of the duty that the solicitor owes based principally upon the scope of the retainer in an individual case. This was explored in some detail in Hall v. Bennett Estate, 2003 CanLII 7157 (Ont. C.A.). What remains unclear are matters such as liability for increased tax liability or probate costs. The English cases have fared better, but results have yet to produce a clear picture in that jurisdiction too (see, for example, Rind v Theodore Goddard [2008] PNLR 459; Vinton v Fladgate Fielder [2010] EWHC (Ch) 904Stevan v Hewats[2013] CSOH 61).

Where then does this leave us other than a state of mild confusion? It seems clear that the warranties implied or made explicit in the retainer agreement remain the clearest way for drafting solicitors to manage the scope of liability.

Have a nice weekend all,

David

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