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Non-Client Duties

Posted on June 1, 2000 | Posted in Lawyers' Issues

Clients have done such a good job in taking pot shots at lawyers that non-clients have also joined the fun. We first discussed this issue in our February 1998 newsletter. The case was Wilhelm v. Hickson, a decision of the Saskatchewan Queen’s Bench. That decision has now been upheld by the Saskatchewan Court of Appeal and has been imported, at least obliquely, to Ontario in De Los Reyes v. Timol, a 2000 unreported decision in the Superior Court of Justice, rendered by Justice Dunn.

Wilhelm Facts

The facts as we stated in our previous newsletter are as follows:

     In 1976, the testator, a farmer, incorporated his own corporation for tax purposes. His accountant and his lawyer (Lawyer #1) were very much involved with the transfer of the testator’s assets, including his farmlands, to the corporation. An agreement was executed transferring the lands; all tax returns and statements thereafter were prepared on the basis that the corporation was the beneficial owner of the lands. Legal title to the lands remained with the testator for land transfer tax purposes.

     In 1984, Lawyer #1 was appointed to the Bench and another lawyer of the same firm (Lawyer #2) took responsibility to service the legal needs of the testator and the corporation. Lawyer #2 supervised the drafting of two years of corporate annual resolutions for the corporation but took no personal interest in the corporation or the testator.

     In 1986, the testator gave instructions to Lawyer #2 to prepare his will. The will was drafted and executed, in accordance with the testator’s instructions, leaving various parcels of land to various beneficiaries. The testator died in 1988.

     The executors of the will quickly realised that they had a problem. The testator did not beneficially own the lands he had attempted to devise in his will; his corporation did. Accordingly, the specific legatees of the lands got nothing and the residual beneficiaries received the lands. The specific legatees were not amused and sued Lawyer #2.

The trial judge decided that the lawyer was negligent and that the lawyer owed a duty of care to the disappointed beneficiaries.


The lawyer did not appeal the finding of negligence against him. His appeal was based primarily on two grounds: he owed no duty to the beneficiaries because of privity of contract and, if he was liable to the disappointed beneficiaries, then the beneficiaries who received the windfall (the “happy beneficiaries”) should be liable to him.

Liability to Beneficiaries

The Court of Appeal delved into all of the reasons why the lawyer should not be liable to the disappointed beneficiaries: scope of a lawyer’s duties is fixed by contract; the damages are for loss of expectation; there are no limits to the categories of liability; and the lawyer is being saddled with a duty that the testator did not have.

However, the Court balanced those reasons with the following arguments in support of liability: without a duty no one has a claim arising out of the lawyer’s negligence; the rights of the disappointed beneficiaries are important; there is no injustice to the negligent lawyer; and to do otherwise would deny a lawyer’s professional role in the community.

The Court agreed that the lawyer owed a duty to the disappointed beneficiaries.

Third Party Claim

The Court disposed of the lawyer’s claim against the happy beneficiaries in 9 lines. The claim was based on unjust enrichment. The Court agreed that there was enrichment but held that, in effect, there was a juristic reason for the enrichment because it occurred as a result of the operation of law. In this case, there had been a Surrogate Court decision supporting the happy beneficiaries and the lawyer had made no effort to participate in the application to the Surrogate Court. The Court of Appeal felt that the lawyer’s third party claim was an attack on the Surrogate Court decision.

It is with this aspect of the decision that we take issue. If the Court is so willing to right a wrong affecting the disappointed beneficiaries, it should be just as willing to right the corresponding wrong with the happy beneficiaries. The Surrogate Court was only deciding who had a right under the will to the property. It was not deciding whether there was a resulting unjust enrichment.

De Los Reyes Facts

The trustee under a 1994 will retained a lawyer to act for the estate. The plaintiff made a claim under a competing will. After giving the plaintiff notice of his intention to do so, the lawyer obtained probate of the 1994 will and assisted the trustee in transferring property pursuant to that will. The trustee and the plaintiff ultimately settled their differences, the plaintiff receiving much of what she would have received under the competing will.

The plaintiff then commenced an action against the lawyer alleging breach of fiduciary duty. We are not sure from the report what damages she was claiming. The lawyer moved to dismiss the action by way of summary judgment.

Too Far

The trial judge noted that the lawyer’s role was to act as solicitor for the estate and the trustee. The trustee’s interest was adverse to that of the plaintiff and the duty of the lawyer was to act in the interests of the trustee and the estate, not the plaintiff.

The judge acknowledged the cases in which a solicitor did not draw a will quickly enough or improperly drew a will (e.g. Wilhelm v. Hickson and the English case on which it relied – even though the trial judge did not specifically cite them) but held that these cases were not applicable in this situation. The judge refused to extend the principles in these cases to force a lawyer to have a duty to someone adverse in interest to the solicitor’s own obligations.

The judge dismissed the action.


If a solicitor is negligent in the preparation of a will or, in dallying so long that the testator dies before the will is prepared, then the solicitor’s insurance should be in good standing. Conversely, as long as there is no conflict of interest, a solicitor is not liable for the losses suffered by a party adverse to the solicitor’s client.


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