We’ve all heard about individuals expecting to benefit under a testator’s will, only to discover they don’t. However, what happens when such individual learns that they were intended to be a beneficiary but aren’t, due to an error by the lawyer who drafted the will? This issue of the ‘disappointed beneficiary’ is dealt with in Hall v Bennett Estate.

In this case, the drafting lawyer received a call from a social worker requesting him to draft a will for Mr. Bennett, a terminally ill patient. During their meeting, Bennett expressed that he wanted his friend, Mr. Hall, to inherit the store he owned. After the meeting, the drafting lawyer was convinced that Bennett did not have the capacity to draft a will so refused to do so. Bennett died intestate later that evening. Upon finding out that he was supposed to inherit Bennett’s store but didn’t, Hall sued the drafting lawyer. The trial judge found that Bennett had the capacity to make a will and as the lawyer did not draft his will, he breached his duty of care to Hall, the potential beneficiary.

The drafting lawyer appealed the decision to the Ontario Court of Appeal. In a unanimous decision allowing the appeal, the Court considered both Ross v Caunters and White v Jones, where the courts found that a solicitor owed a duty of care to a prospective beneficiary under a will.

Once it was determined that a duty of care could be owed to a third party beneficiary, the Court of Appeal applied the test from Anns v Merton London Borough Council, revisited by the SCC in Cooper v Hobart, to determine whether in this specific set of circumstances, the drafting lawyer owed a duty of care to Hall. The test is laid out as follows:

• Stage One:
  • (a) Was the harm caused by the defendant’s action reasonably foreseeable?
  • (b) Is there a sufficient relationship of proximity between the parties?
• Stage Two: If stage one is met, are there policy considerations for refusing to recognize the duty?

When applying this test to the case at bar, the Court of Appeal found that, because there was no retainer, there was no duty of care to the client or the third party beneficiaries. Therefore, the drafting lawyer owed no duty of care to Hall and the appeal was allowed.

It is important to note that the Court of Appeal stated the duty could be met even without a retainer where the solicitor negligently misrepresents that they will accept the retainer, either by words or conduct, and the client relies on the misrepresentation to their detriment. The Court of Appeal also noted that, without a retainer, it was likely the harm to the third party beneficiary by the failure to make a will would still be foreseeable, but the test would fail due to insufficient proximity.

Thanks for reading,

Darien Murray