WILLS AND ESTATES Trevor Todd
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n Korpiel v Sanguinetti (1999) B.C.J. 1048, the Court concluded that a Will‑drafter, usually a solicitor or BC Notary, owes no duty of care to beneficiaries beyond the competent and timely fulfillment of the testator’s testamentary instructions. In the Sanguinetti case, the Court considered whether a Will-drafter owed a duty to beneficiaries who had been named in a client’s former Will. The plaintiffs were relatives of an elderly testator who had instructed his lawyer to prepare a Will bequeathing his home to the plaintiffs. Some years later, the testator changed his mind and instructed the lawyer to draft a new Will, leaving the plaintiffs only a small bequest. The plaintiffs challenged the later Will and brought a Court action against the lawyer who drafted it, for a breach of fiduciary duty owed to them. Their claim was dismissed. The Court held that if a Willdrafter were to conduct himself or herself as proposed by the plaintiffs— that is, to refuse to follow the client’s instructions in preference to the interests of the potential beneficiaries, it would be impossible for the Willdrafter to avoid a conflict of duty
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The plaintiffs challenged the later Will and brought a Court action against the lawyer who drafted it, for a breach of fiduciary duty owed to them. and interest. If the Will-drafter were to be held to advocate for inclusion of persons or terms of disposition that were contrary to the specific instructions of the client, it would clearly result in a conflict with the Will-drafter’s primary duty to his or her client. The Court found such a situation would be untenable. Thus a Will-drafter cannot owe an independent fiduciary duty to the beneficiary of a Will, for if the testator’s instructions were to conflict with the beneficiaries’ interests, the Will-drafter would be unable to avoid conflicting duties to both parties. In Smolinski v. Mitchell [1995] 10 W.W.R. 68 (BCSC), Sigurdson J. considered the question of the duty of a solicitor to his client, in contrast to the duty to others who may be deprived of an inheritance by reason of a solicitor’s failure to properly carry out his client’s instructions. His Lordship quoted from the English decision of Ross v. Caunters [1979] 3 All E.R. 580, [1980] Ch. D. 297 at 322: The Society of Notaries Public of British Columbia
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The Duty of Care Owed by a Will-Drafter he argument seems to me to T confuse duties which differ in their nature. In broad terms, a solicitor’s duty to his client is to do for him all that he properly can, with, of course, proper care and attention. Subject to giving due weight to the adverb “properly,” that duty is a paramount duty. The solicitor owes no such duty to those who are not his clients. He is no guardian of their interests. What he does for his client may be hostile and injurious to their interests; and sometimes the greater the injuries the better he will have served his client. The duty owed by a solicitor to a third party is entirely different. There is no trace of a wide and general duty to do all that properly can be done for him. Instead, in a case such as the present, there is merely a duty, owed to him as well as the client, to use proper care in carrying out the client’s instructions for conferring the benefit on the third party. The Alberta Court of Appeal in Graham v. Bonnycastle, 2004 ABCA 270 (leave to appeal to the S.C.C. refused, [2004] S.C.C.A. No. 489), came to a similar conclusion after an extensive review of the law. In the Graham case, the children of the testator had been equal beneficiaries under a 1984 Will. In 1994, after having been diagnosed with Alzheimer’s disease, the testator executed a new Will, leaving a small Volume 26 Number 2 Summer 2017
