Solicitors preparing Wills need to be mindful of the obligations they owe to a testator.  The seminal Court of Appeal decision in Hall v Bennett Estate provides a helpful refresher of the steps a solicitor should consider to ensure best practices are followed.

According to the Court, it is well established that a “solicitor who undertakes to prepare a will has the duty to use reasonable skill, care and competence in carrying out the testator’s intentions. This duty includes the obligation to inquire into and substantiate the testator’s capacity to make a will”.

Testing for capacity is fundamental – a solicitor has a duty to make inquiries into the testamentary capacity of the testator.

Should the solicitor have any doubt as to capacity, Justice Cullity in Scott v Cousins, famously states that “…careful solicitors who are in doubt on the question of capacity, will not play God – or even judge – and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question”.

The Court of Appeal proceeds to summarize an article written by M.M. Litman & G.B. Robertson outlining errors made by solicitors in the preparation of a Will, leading to negligence claims,  including failing to:

  • obtain a mental status examination;
  • interview the testator in sufficient depth;
  • properly record or maintain notes; and
  • test for capacity.

As such, notes from a drafting solicitor should ensure that all of these are addressed.

In certain instances, although narrow, a duty of care might also be owed to a disappointed beneficiary.  A two part test is applied as set out by the Supreme Court of Canada in Cooper v. Hobart.

While claims for negligence by testators and disappointed beneficiaries cannot be stopped, a file with detailed notes can go a long way in defending such a claim.

Noah Weisberg

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