Seventy nine year old Bruce Bennett was on his deathbed and Mark Frederick was the lawyer called to the hospital to prepare a new will. Bennett wanted to leave money to Peter Hall. Bennett was quite lucid when conscious and capable of giving simple directions, but he could not deal with issues like his net assets, debts or the exact value of his property or bank accounts. During the interview with the lawyer, Bennett could only stay awake for a few minutes at a time. He could not remember the full extent of his estate and was not alert enough to review or sign the will. The lawyer did not believe Bennett had the capacity to make a will and accordingly never agreed to open up a file and would not take a retainer. That night Bennett died and Peter Hall received no money from the estate. He sued the lawyer.
Mr. Hall argued as follows:
- The lawyer was wrong and Bennett had the capacity to make a will;
- Lawyers have a duty to third parties for reasonably foreseeable consequences when there is a close enough connection between the parties.
- Lawyers owe beneficiaries a duty to use reasonable skill, care and competence to determine the testator’s wishes and draft a will accordingly. There is a legal obligation to accept retainers and prepare wills. Failure to do so is negligent and constitutes a tort that resulted in damages to Hall for which the lawyer was liable.
The Ontario Court of Appeal held that a lawyer owes a duty of care to a third party beneficiary and will be held liable in an action of negligence if the harm that occurred was a reasonably foreseeable consequence of the lawyer’s act and if there was a sufficiently close connection between the parties. However, in this case, Frederick never agreed to take this case. The lawyer acted reasonably and prudently in assessing capacity and the lack of a retainer meant there was no duty of care owed to a potential beneficiary.
On one hand, there is a general principle that lawyers are free to accept or refuse a case. On the other hand, the Rules of Professional Conduct of the Law Society of Ontario provide that a lawyer must be careful about refusing to act for a client if the probable result would be to make it difficult for a person to obtain legal advice or representation. The court agreed that in this instance, the testator lacked capacity and it was the lawyer’s duty to turn down the retainer. In a case where the testator had capacity, the court left the door open for someone to argue that a lawyer may be found liable by a third party ben eficiary for refusing to prepare the will.
There is an old joke that death is not the end… it is the beginning of estate litigation. Despite the temptation to jump to conclusions, it would be a mistake to view this canvassing of a significant legal issue as legal advice. It is always advisable to speak to a qualified lawyer to determine if circumstances are sufficient for a ben eficiary to a make a claim against a lawyer involved with the drafting of a will.