Canada: The Disappointed Beneficiary

Last Updated: August 13 2013
Article by Crista C. Osualdini

The Supreme Court of Canada has cautioned all counsel that, amongst other matters, we must be skillful and careful, advise our clients of all matters relevant to our retainer and protect the interests of our clients. However, when it comes to drafting estate documents, does a duty of care extend to beneficiaries who may be disappointed by a Will that is found to be invalid?

This body of case law begins to develop in the 1979 English decision in Ross v. Caunters1. In this decision a solicitor prepared a Will for the testator and sent it to the testator for her to attend to execution. The solicitor failed to warn the testator that her husband could not be a witness to the Will as it would render her husband's gift void. The Court found this to be negligent on the part of the solicitor and found the solicitor to be liable to the husband.

The English Courts considered these issues again in 1995 when a prospective beneficiary sued the testator's solicitors for negligent delay in preparing the testator's new Will2. In White, the testator had an unfortunate falling out with his children and had a Will drafted that cut them out entirely from the estate. Fortunately, the testator and his children mended their differences and the testator gave his solicitor instructions on July 17, 1986 that he wanted a new Will created that included his children. The solicitor did not make an appointment with the testator to have his new Will executed until September 17, 1986 (and did not begin the drafting process itself until September). As fate would have it, the testator passed on September 14, 1986 and was not able to execute a new Will. Interestingly, the Court awarded damages to the prospective beneficiary noting that "the only person who may have a valid claim has suffered no loss, and the only person who has suffered a loss has no claim." It is an important practice point that Courts have held that a two month delay in preparing a Will can constitute negligence.

The rule in White was later adopted by the Saskatchewan Court of Appeal in the Hickson v. Wilhelm3decision. The unfortunate lawyer in this decision failed to ascertain that farmland that was the subject of certain bequests was owned by the testator's corporation and not the testator himself and thus the bequests failed. The Court found the lawyer's actions to be negligent and awarded damages to the disappointed beneficiaries.

The Alberta Court of Appeal was required to consider the disappointed beneficiary rule in the 2004 decision in Graham v. Bonnycastle4. The Court held that the duty owed by the solicitor when drafting estate documents is to the third party 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 Court noted that liability is limited to situations where there is an identified third party beneficiary and the solicitor knew of the client's intention to benefit that individual and there is not a conflict of interest between the third party beneficiary and the client The most recent Alberta decision that considers the disappointed beneficiary rule is in Meier v. Rose5. The facts in Meier are quite similar to Hickson wherein the solicitor neglected to ascertain that certain lands were owned by the testator's corporation and not the testator himself. The Court held in paragraph 53 that "In receiving instructions for the preparation of a will, a solicitor is entitled to place an appropriate degree of reliance upon the client and the information he provides, having regard to the circumstances of the engagement. However, a solicitor is not relieved from the responsibility to ensure that his instructions are complete and sufficiently accurate in law or otherwise so that the work undertaken by solicitor on behalf of a client will achieve the intended result. The standard of care goes beyond simply recording the testator's wishes and preparing the will, without anything further, in circumstances where the reasonably competent solicitor should be alert to the need to clarify certain information." The Court held that the solicitor had breached the standard of care placed upon him and that he was liable to the disappointed beneficiary. The Court noted that even though the testator was in a hurry to get their Will done, as so often many clients are, this did not provide a justification for not verifying the ownership of the land. The Court largely came to this conclusion because the solicitor had some knowledge that the testator used a corporate vehicle to own some of his land.

In summary, when drafting Wills for our clients, we owe a duty of care to identified third party beneficiaries so long as:

a. There is no possibility of conflict between the interests of our client and the third party;

b. We knew of our client's intention to benefit that third party beneficiary;

c. The scope of that duty is to use proper care in carrying out the client's instructions for conferring the benefit on the third party; and

d. It is not sufficient for us to blindly take instructions and to record them in the Will, we have an obligation to ensure that the instructions are complete and sufficiently accurate in law in order to achieve the desired result. However, we are entitled to place an appropriate degree of reliance upon the client and the information provided, having regard to all of the circumstances.


1. [1979] 3 All E.R. 580 (Ch D).

2. White v. Jones, [1995] 1 All ER 691 (HL).["White"]

3. 2000 SKCA 1, leaved denied [2000] SCCA No. 124.["Hickson"]

4. 2004 ABCA 270, leave denied [2004] SCCA No. 489.

5. 2012 ABQB 82["Meier"]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Crista C. Osualdini
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

24 Oct 2018, Webinar, Calgary, Canada

A written employment agreement is an often ignored best practice for non-union employers. A written agreement can be a critical risk management tool if it properly sets out duties, rights and expectations both during the employment relationship and after it ends.

5 Nov 2018, Webinar, Calgary, Canada

Who Should Attend: This webinar is intended for superintendents of schools, central office personnel, HR personnel, in house counsel and school board trustees.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions