Hall v. Estate of Bruce Bennett by the Estate Trustee Gagliardi et al. [Indexed as: Hall v. Bennett Estate]

64 O.R. (3d) 191

[2003] O.J. No. 1827

Docket No. C37163

Court of Appeal for Ontario

O'Connor, A.C.J.O., Weiler and Charron JJ.A.

May 14, 2003

Professions -- Barristers and solicitors -- Negligence -- Solicitor attending on terminally ill hospital patient for the purposes of preparing will -- Solicitor deciding that patient lacking testamentary capacity -- Solicitor not preparing will -- Intended beneficiary suing solicitor -- Appeal of judgment against solicitor allowed -- In action against solicitor for failure to prepare will relevant question about testamentary capacity was not whether there was capacity but whether a reasonable and prudent solicitor could have concluded that testamentary capacity was absent.

On Saturday, January 13, 1996, Patricia Crowe, a social worker, requested that Mark Frederick, a solicitor, attend at the Kingston General Hospital to see Bruce Bennett, a 79-year- old terminally ill patient who wished to make a will. Frederick interviewed Bennett for 65 minutes during which time Bennett would drift in and out of consciousness. Bennett gave some instructions, including instructions to leave his store to Peter Hall, a friend who had taken care of his affairs from time to time. However, Frederick decided that he could not safely prepare a will because Bennett did not have a complete sense of what was to happen to his estate and was not sufficiently alert to review and execute a will. Frederick left the hospital, and that evening Bennett died, intestate. A few months later, Hall, who had learned about Bennett's intended bequest, sued the Estate, the two grandsons who inherited the estate and Frederick. The action was dismissed on consent against the defendants other than Frederick. The trial judge, Manton J., concluded that Bennett had the capacity to make a will and that Frederick had breached a duty of care to Hall. Manton J. held that Frederick should have prepared the will and had it signed in accordance with the provisions of the Succession Law Reform Act, R.S.O. 1990, c. S.26 that allows a will to be signed by a person at the direction of the testator and that the question should have been left to be determined later by a court. He granted Hall judgment for $124,500 plus pre-judgment interest and costs. Frederick appealed.

Held, the appeal should be allowed.

For a will to be valid, it must be a product of a sound and disposing mind. The issue of Bennett's testamentary capacity was a relevant issue at trial because if Bennett lacked capacity, then the plaintiff Hall would not have been able to prove [page192] any loss. However, on the issue of the defendant's liability, the relevant question with respect to testamentary capacity was not whether Bennett was capable of making a will but whether a reasonable and prudent solicitor in Frederick's position could have concluded that he did not. The trial judge erred by not addressing this issue.

In this case, Frederick had undertaken to interview Bennett with a view to obtaining instructions to prepare a will. Therefore, he had to bring the skill of a reasonably prudent solicitor to this task. A solicitor who undertakes to prepare a will has a duty to inquire into his or her client's testamentary capacity and to be satisfied that testamentary capacity exists and is being freely and intelligently exercised in the disposition of the property. Particular care is required when an elderly testator is seriously ill and the illness is capable of affecting his or her mental state. The evidence in support of Frederick's opinion that Bennett lacked testamentary capacity was overwhelming. Indeed, in the circumstances, it was his duty to decline the retainer. On all the circumstances, Frederick fulfilled any obligation that he owed to Bennett and, in the absence of any retainer to prepare a will, he owed no duty of care to Hall.

APPEAL from a judgment of Manton J., [2001] O.J. No. 5092 (S.C.J.) in an action.

Cases referred to Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 526, 121 Sol. Jo. 377, 5 B.L.R. 1, 243 Estates Gazette 523, 591, [1977] J.P.L. 514 (H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, 96 B.C.L.R. (3d) 36, 206 D.L.R. (4th) 193, 277 N.R. 113, [2001] 11 W.W.R. 221, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of Mortgage Brokers (B.C.) et al.); Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, 115 Man. R. (2d) 241, 146 D.L.R. (4th) 577, 211 N.R. 352, 139 W.A.C. 241, [1997] 8 W.W.R. 80, 31 B.L.R. (2d) 147, 35 C.C.L.T. (2d) 115; Leger v. Poirer, 1944 1 (SCC), [1944] S.C.R. 152, [1944] 3 D.L.R. 1; Murphy v. Lamphier (1914), 1914 535 (ON CA), 32 O.L.R. 19, 20 D.L.R. 906 (C.A.), affg [1914] O.J. No. 32 (Quicklaw), 31 O.L.R. 287 (H.C.); Ross v. Caunters, [1979] 3 All E.R. 580, [1980] Ch. 297, [1979] 3 W.L.R. 605, 123 Sol. Jo. 605; Scott v. Cousins (2001), 37 E.T.R. (2d) 113, [2001] O.J. No. 19 (Quicklaw), [2001] O.T.C. 9 (S.C.J.); White v. Jones, [1995] 1 All E.R. 691, [1995] 2 A.C. 207, [1995] 2 W.L.R. 187, [1995] 3 F.C.R. 51, [1995] N.L.J.R. 251, 139 Sol. Jo. L.B. 83 (H.L.) Statutes referred to Succession Law Reform Act, R.S.O. 1990, c. S.26 Rules and regulations referred to Rules of Professional Conduct, Law Society of Upper Canada, rule 3.01 (commentary) Authorities referred to Litman, M.M., and G.B. Robertson"Solicitor's Liability for Failure to Substantiate Testamentary Capacity" (1984), 62 Can. Bar Rev. 457

Paul R. Henry and Robert B. Lawson, for respondent. E. Eva Frank, for appellant. [page193]

The judgment of the court was delivered by

[1] CHARRON J.A.: -- In this case, a solicitor was found liable to a prospective beneficiary for his failure to prepare a will in accordance with the instructions given to him by a terminally ill patient in a hospital. The solicitor did not prepare the will because, in his assessment, the instructions were incomplete and the patient lacked testamentary capacity. The solicitor appeals from the trial judgment. In my view, his appeal must succeed.

Overview of the Facts and the Findings at Trial

[2] Bruce Bennett died in the Kingston General Hospital at 7:00 p.m. on Saturday, January 13, 1996 at the age of 79 years. At 8:00 a.m. that morning, the appellant solicitor, Mark Frederick, received a telephone call at his home from a social worker requesting that he attend at the hospital to see a terminally ill patient who wished to make a will. Frederick agreed to meet the social worker at the hospital at 10:00 a.m. On the way to the hospital, he purchased a will form at a local store in case a will would have to be prepared expeditiously.

[3] At 10:00 a.m., Frederick met Bennett in his hospital room along with the social worker, Patricia Crowe, and the nurse on duty, James Swift. Neither Frederick nor Crowe had ever met Bennett before that day. Swift had been taking care of Bennett during his hospital stay and simply knew him as the operator of a store in Westport. Frederick therefore had little, if any, information about Bennett at the time he met him. He had been informed, however, that Bennett was terminally ill.

[4] For the next 65 minutes, Frederick interviewed Bennett with a view to ascertain his testamentary wishes. During the course of this interview, Bennett gave directives with respect to some specific bequests, including a bequest of his store to the respondent, Peter Hall. Hall was a friend of Bennett's who took care of his affairs from time to time. Bennett also referred to Hall as his lawyer. Although Hall was legally trained, he had not practised law since 1972. The evidence with respect to what transpired during this interview will be described in detail later in this judgment.

[5] Frederick eventually left the hospital room without having prepared a will for Bennett. Frederick was of the view that he could not safely draw a will because Bennett did not have a complete sense of what was to happen to his estate and would not have been able to maintain alertness long enough to review and execute a will. Consequently, Frederick left his card at the [page194] nurses' desk in case the situation changed, and left the hospital. He was not called back. Bennett died that evening, intestate.

[6] A few months later, Hall was surprised to learn that Bennett had intended to leave him the store in Westport. He commenced an action against Bennett's estate, the two grandsons who inherited his estate, and Frederick. The action was later dismissed on consent as against the defendants other than Frederick.

[7] The action as against Frederick was tried before Manton J. in June 2001. Hall represented himself at trial. He testified on his own behalf and called three witnesses: the nurse, Bennett's cousin who had spent most of the day at Bennett's bedside on the day he died, and the cousin's companion who [was] also at the hospital that day. Frederick was represented by counsel. He testified in his defence and also called three witnesses: the social worker and two experts, a psychiatrist and a lawyer.

[8] At the conclusion of the trial, the trial judge characterized the issues in his reasons for judgment as the following:

(1) Did Bennett have the capacity to make a will on January 13, 1996?; and

(2) Did Frederick fulfill his duty of care to Hall?

[9] The trial judge concluded that Bennett had the capacity to make a will and that Frederick, in failing to prepare a will in accordance with Bennett's instructions, had breached his duty of care to Hall. More specifically with respect to Frederick's conduct, the trial judge found that Frederick had sufficient information to prepare a will. He found that Frederick had spent too much of his time with Bennett worrying about obtaining a list of his assets and determining what would be done about the residue of the estate. He held that in the circumstances, Frederick should have prepared the will, he should have had it signed in accordance with the provision of the Succession Law Reform Act, R.S.O. 1990, c. S.26, that allow for some other person to sign the will at the direction of the testator, and he should have left the question of capacity to be later determined by a court, if necessary. He therefore granted judgment to Hall for $124,500, plus pre-judgment interest and costs. Frederick appeals from this judgment.

The Issues

[10] The relevant issues on the question of liability are the following:

(a) Did Frederick owe a duty of care to Hall as a prospective beneficiary under Bennett's will? [page195]

(b) If so, what was the standard of care?

(c) Did Frederick's conduct fall below this standard of care?

(d) If so, did the breach of duty occasion any loss to Hall?

[11] As noted earlier, the trial judge characterized the issues differently. He inquired first into whether Bennett had the capacity to make a will on January 13, 1996, and if so, whether Frederick breached his duty of care to Hall in failing to prepare a will. The appellant submits that the trial judge mischaracterized the issues. In response, the respondent notes that the trial judge simply adopted the statement of issues as it was put to him by counsel for the appellant at trial. While this is correct and may explain why the trial judge framed the issues as he did, it is nonetheless my view that the approach adopted at trial was flawed.

[12] There is no dispute that the question of whether Bennett, in fact, had testamentary capacity on the day he died was a relevant issue at trial. Indeed, if the trial judge had concluded that Bennett was incapable of making a will, Hall would have failed to prove any loss, and his action would have been dismissed. This perhaps explains why counsel for the appellant at trial (not counsel on appeal) invited the trial judge to deal first with the issue of testamentary capacity. However, on the issue of liability, the relevant question with respect to testamentary capacity was not whether Bennett in fact was capable of making a will but whether a reasonable and prudent solicitor in Frederick's position could have concluded that he did not. As it turned out, this crucial question, although fully canvassed in the evidence, was never addressed by the trial judge. Hence, as I will explain, it is my view that the trial judge's mischaracterization of the issues led him into error.

[13] Because the question of testamentary capacity is central to this case, I will set out the relevant legal principles before reviewing the evidence and proceeding with the analysis of the issues on liability.

The Law on Testamentary Capacity

[14] Numerous cases have dealt with the question of testamentary capacity. It has often been repeated that a testator must have "a sound disposing mind" to make a valid will. The following requirements can be extricated from the case law. In order to have a sound disposing mind, a testator:

-- must understand the nature and effect of a will; [page196]

-- must recollect the nature and extent of his or her property;

-- must understand the extent of what he or she is giving under the will;

-- must remember the persons that he or she might be expected to benefit under his or her will; and

-- where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

[15] It is also clear from the jurisprudence that the test to be met to prove testamentary capacity is a high one and the onus falls on the propounder of the will. The jurisprudence abounds with statements that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind as described above. It is only necessary to refer to a few cases to appreciate the level of capacity required to make a will.

[16] I will start with the seminal case of Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.), affd (1914), 1914 535 (ON CA), 32 O.L.R. 19, 20 D.L.R. 906 (C.A.). I do not find it necessary to relate the facts of that case in any detail. Suffice it to say that the plaintiffs were seeking to establish, as the will of the deceased, a writing executed the year before she died at the age of 80 years, at a time when she was frail and progressively impaired. The writing represented a sweeping change from an earlier will. The court, after examining all the circumstances, was not satisfied that the testatrix had testamentary capacity at the time she executed the writing. The decision provides useful guidance, not only for identifying the necessary elements that constitute testamentary capacity noted earlier, but for appreciating that the mere capacity to communicate testamentary wishes is not determinative of the issue.

[17] The court in Murphy held that it is an error to suppose that, because a person can understand a question put to him and give a rational answer, he or she is of sound mind and capable of making a will. Rather, the court emphasized that the competency of the mind must be judged in light of the nature of the act to be done, and from a consideration of all the circumstances of the case. The nature of the act requires that the testator have "a sound disposing mind" which the court described as follows at p. 318 O.L.R.: [page197]

The testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property and the nature of the claims of others whom by his will he is excluding from all participation in that property.

[18] The court commented further on the inadequacy of the test of capacity employed by the solicitor who had not probed the testatrix to ascertain her powers of recollection as follows at p. 316 O.L.R.:

The method here employed of testing mental capacity has been discountenanced since the earliest days of testamentary law. See the old citations used by Vankoughnet, C., in Menzies v. White (1862), 9 Gr. 574, 576"that sane memory for the making of a will is not at all times when the party can speak, read, or write, or had life in him, nor when he can answer to anything with sense, but he ought to have judgment to discern, and to be of perfect memory; that it is not sufficient that the testator be of memory when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his property with understanding and reason, and that is such a memory which the law calls sane and perfect memory."

[19] This high standard for proving testamentary capacity was adopted by the Supreme Court of Canada in Leger v. Poirier, 1944 1 (SCC), [1944] S.C.R. 152, [1944] 3 D.L.R. 1. Rand J. stated the following at p. 161 S.C.R.:

. . there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A "disposing mind and memory" is one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revocation of existing dispositions, and the like; this has been recognized in many cases:

[20] After reviewing some of the relevant jurisprudence, the Supreme Court of Canada concluded [at p. 162 D.L.R.] that:

Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole . . .

[21] The stringent exigencies of the law on testamentary capacity should not be surprising. The making of a will is an important activity and one that, not uncommonly, is engaged in by a person who is approaching the end of his or her life, whether it be by reason of illness or advanced age. It is also not uncommon that a person at that stage of life may suffer from some form of mental impairment, and that impairment may not be readily apparent to those who are not closely associated with the person. Cullity J. comments on this point in [page198] Scott v. Cousins (2001), 37 E.T.R. (2d) 113, [2001] O.J. No. 19 (Quicklaw) (S.C.J.), as follows at paras. 71-73:

The profession has also been warned on numerous occasions that the fact that an elderly person suffers from a form of dementia, and has lost capacity, may not be immediately apparent to those who are not closely associated with her. . . . The point is made succinctly in Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (17th edition, 1993), at page 163:

The personality of old people is often well preserved and, at a casual interview, they may give every appearance of being capable of making a will although, in fact, they lack capacity.

[22] The law is equally clear that a solicitor who undertakes to prepare a will has a duty to inquire into his or her client's testamentary capacity. The court in Murphy, supra, described the nature of the duty as follows at pp. 318-19 O.L.R.:

A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty.

[23] Cullity J., in Scott, supra, also provides a useful description of the duty of the solicitor at para. 70:

The obligations of solicitors when taking instructions for wills have been repeatedly emphasised in cases of this nature. At the very least, the solicitor must make a serious attempt to determine whether the testator or testatrix has capacity and, if there is any possible doubt -- or other reason to suspect that the will may be challenged -- a memorandum, or note, of the solicitor's observations and conclusions should be retained in the file: see, for example, Maw v. Dickey (1974), 1974 628 (ON SC), 6 O.R. (2d) 146 (Surr. Ct.), at pages 158-9; Eady v. Waring, above, at page 635; Murphy v. Lamphier (1914), 31 O.L.R. 287 (H.C.), at pages 318-21. Some of the authorities go further and state that the solicitor should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. This, I think, may be a counsel of perfection and impose too heavy a responsibility. In my experience, 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.

[24] For a useful review of cases that have considered the solicitor's duty to ascertain and substantiate testamentary capacity, see [page199] the article written by M.M. Litman & G.B. Robertson on "Solicitor's Liability for Failure to Substantiate Testamentary Capacity" (1984), 62 Can. Bar Rev. 457. The authors note how courts have stressed the particular importance of the solicitor's duty in cases of suspicious circumstances. They state the following at p. 470:

The solicitor's duty to substantiate capacity is particularly important in cases of suspicious circumstances. By suspicious circumstances is meant any circumstances surrounding the execution or preparation of a will which individually or cumulatively cast doubt upon the testator's capacity to make a will or his knowledge and approval of the will's contents. Suspicious circumstances are innumerable in form and cannot be listed comprehensively [footnote omitted].

[25] The authors conclude their review of cases of suspicious circumstances by saying at p. 474:

In the context of testamentary capacity cases, ser[i]ous illness in a testator, especially where the testator is elderly and his illness is capable of affecting his mental state, is one of the most extreme of suspicious circumstances. Few other circumstances demand of the solicitor greater care and caution [footnote omitted].

[26] The authors then identify solicitors' common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a will. These include:

-- the failure to obtain a mental status examination;

-- the failure to interview the client in sufficient depth;

-- the failure to properly record or maintain notes;

-- the failure to ascertain the existence of suspicious circumstances;

-- the failure to react properly to the existence of suspicious circumstances;

-- the failure to provide proper interview conditions (e.g. the failure to exclude the presence of an interested party);

-- the existence of an improper relationship between the solicitor and the client (e.g. preparing a will for a relative); and

-- failing to take steps to test for capacity.

[27] It is in the light of these principles that one must consider the evidence relating to Bennett's condition and Frederick's assessment of his prospective client's testamentary capacity. [page200]

The Evidence on Testamentary Capacity

[28] Of particular importance are the events that transpired at the hospital on January 13, 1996 during the encounter between Frederick and Bennett. They form the basis for Frederick's assessment that Bennett was not capable of making a will. As noted earlier, three persons were present during the interview at the hospital, Frederick, a nurse and a social worker. The nurse, Swift, testified for the plaintiff; Frederick and the social worker, Crowe, testified for the defendant.

[29] Swift testified first and provided the most detailed account of the interview. He testified that Frederick explained to Bennett why he was there and that he then asked him questions about his testamentary wishes. Although Bennett responded to Frederick's questions, the conversation was very difficult due to the fact that Bennett kept drifting in and out of consciousness. This happened quite frequently. When asked what Bennett was like when he was awake, Swift stated as follows:

When he was awake . . . -- for his periods of wakefulness he . . . he was lucid and communicating what directives he . . . he wished to do, but like I say, it was a very complicated conversation in the fact that there were frequent periods where he would drift in and out of consciousness. And to try and keep him awake and alert through the conversation it was necessary to elevate the head of his bed to a sitting position. There were florescent [sic] lights above the bed plus procedure lights as well, and I turned on those lights to brightly light the room to try to stimulate him to remain awake, and he'd have to quite often talk to him in a very loud voice to rouse him again; he would rouse -- okay? -- and sometimes you would have to grab his hand and just give his hand a squeeze to bring him back.

[30] Swift stated that Bennett was able to give a number of directives with respect to his will. What Swift remembered most was that Bennett had a daughter from whom he had been estranged for a number of years and to whom he only wanted to give the token sum of $100. Likewise, he wanted $100 to go to each of his two grandchildren. He wanted to give the sums of $20,000 and $10,000 to each of two women who worked for him in the store; $10,000 and his car to his cousin Ron Lapointe; $10,000 to Brenda Bennett, a relative; and his store to the respondent Hall. Swift commented further on Bennett's capacity to communicate as follows:

He was capable of making simple directives, but with regards to any complex thoughts in nature regarding his net assets, debts, or the exact value of his property or bank accounts and stuff like that, he did not have the real capacity to . . .

[31] When asked if Frederick asked Bennett what the extent of his assets were, or anything of that nature, Swift testified that he [page201] believed so. When asked if Bennett replied to such questions, he stated that the conversation was complicated due to the fact that Bennett kept drifting in and out of consciousness. It seemed to him that 65 minutes was "a very long time to arrive at those simple directives" and the reason for that was because it was necessary to speak in loud voices, to grab his hand and squeeze it and "that sort of stuff to bring him back to a conscious state". He stated further that Bennett continued to deteriorate during the course of the [meeting] and that his vital signs were "just about incompatible with life".

[32] Swift also testified that Bennett was on strong medication for chest pain but that he had held off giving him medication beyond 8:00 a.m. that morning in anticipation of the meeting with the lawyer. Swift testified that, as the interview progressed, the three of them started to feel very uncomfortable with the whole situation because Bennett kept drifting off into unconsciousness. After 65 minutes, the conversation was ended. Swift was anxious to give Bennett his medication because he thought it seemed cruel not to do so and let him suffer any more chest pain. Swift testified that Bennett continued to deteriorate during the course of the afternoon until his death that evening.

[33] Frederick's account of Bennett's condition and of his moments of consciousness was consistent with Swift's testimony. He stated that he very quickly abandoned the idea that he would ever go through the check list on the will form and complete a detailed inventory of Bennett's estate. He stated that Bennett was not forthcoming with answers on that account and that it was difficult to know whether this was because he didn't recollect or whether he didn't want to answer. Frederick testified that he asked Bennett several times what he wanted to happen to the residue of his estate and he could not get him to give an answer. Frederick tried to explain that if he did not give an instruction with respect to the residue, it could end up going to his daughter and grandchildren, something Bennett did not want to happen. Frederick testified that this explanation did not seem to mean anything to Bennett.

[34] Frederick came to the conclusion that Bennett was simply not going to be capable of completing the task. He explained why:

Well, I felt that he had to be able to remain conscious for a sufficient period of time that I could review with him, even if orally, because I had no indication he could read anything, . . . to review with him the entirety of what he had told me he wanted to do with his estate, and there was no possibility he could do so. At the end, my observation was that his periods of consciousness were so short that . . . five or six seconds was about his limit and I couldn't . . . couldn't get through barely one statement of what he had said before we were in a situation where he would have been woken up, and I felt [page202] at the time, I would have had to start again and review what we talked about so that there would be a sense of completeness. [sic] thoughts to particular gifts, he didn't have a complete sense at all of what was to happen to his estate. He had a couple of names, or a few names, and a few assets, and then it ended, and there was no [sic] a sense of completeness of the people to whom he would want or . . . or organizations he would want to leave his assets to.

And also, I was very concerned about the fact that he seemed either unable or unwilling to disclose to me what the nature of his assets were. He was making money gifts which might be inconsistent with the property gifts; I had no idea that he had money or he might have had a lot or none. He gave no clue. I was concerned he might not know. So, that concerned me greatly that he seemed to have almost a naïve knowledge of his estate.

And then his general physical and mental health was such that he was almost . . . it was almost like talking to a . . . you know, someone who literally had left us, because of his state. Quite apart from the fact that he couldn't write. He couldn't have given a sign to do anything or to sign on his behalf even, because he . . . he would have been doing so in isolation from the entirety of the testamentary instructions being discussed and reviewed with him.

[35] Frederick also testified that he terminated the interview because the nurse had been telling them for the last half of the interview that, from a humane point of view, he would have to medicate Bennett at which time he would likely pass out. Frederick stated that it "almost sort of implied that he might just not regain consciousness".

[36] In cross-examination, Frederick was questioned on his notes to the effect that Bennett was "quite lucid when conscious" and "at no times confused" and was asked whether this impacted on his assessment of Bennett's capacity. He responded as follows:

No, it's all part of what I did. The fact that he made honest and lucid individual statements was part of the package when I made an evaluation of his capacity. The fact that he said these things wasn't enough in the totality of the situation that I had before me.

(Emphasis in transcript)

[37] Crowe also gave a brief description of the interview. Her evidence was consistent with Swift's account. When asked if she had any idea why the will was not done, she responded that it was her understanding that Mr. Bennett had to be able to have a will read to him and would have to reiterate back what he had heard as being accurate and sign something to that effect. When asked if she believed Mr. Bennett could do that at the end of the meeting, she unequivocally stated: "He wasn't able to do that."

[38] The other evidence called at trial that related to testamentary capacity but did not form part of the information known to Frederick is the following. [page203]

[39] Lapointe, Bennett's cousin, arrived at the hospital while the interview with Frederick was taking place. However, he did not enter the room until after Frederick's departure. Lapointe stayed with Bennett until his death that evening. He testified that during the course of the day Bennett would alternate between periods of sleep and wakefulness. At times he would be awake for 10 minutes and sometimes for up to half an hour. When awake, he was able to talk but he never mentioned anything about a will. After 5:00 p.m., he went to sleep and never woke up again.

[40] Lapointe also testified that, to his knowledge, Bennett already had a will but he did not know where it was. He stated that Bennett wanted nothing to do with his daughter. After Bennett's death, Lapointe discovered that the daughter had in fact predeceased Bennett by a couple of years. Lapointe believed that Bennett never knew that his daughter had died.

[41] Joyce Philip, Lapointe's companion, also testified for the plaintiff. She also spent part of the day at the hospital with Lapointe and Bennett. She testified that Bennett drifted in and out of consciousness, but that he was still lucid and could carry on a brief conversation. When asked what she meant by "lucid", she said that he was "understandable", that you could understand what he was saying "quite clearly".

[42] The court also received evidence showing that the directives given by Bennett would have effectively disposed of about 25 per cent of his estate.

[43] Dr. Michel Silberfeld, a psychiatrist, gave expert opinion evidence that Frederick's evaluation of Bennett's lack of capacity was reasonable and proper. Dr. Silberfeld had extensive experience in the field of capacity assessments.

[44] Amongst other things, he testified that some physical conditions are compelling with respect to a person's capacity. One of them is the question of consciousness:

If a person is not conscious, clearly they can't express wishes. If they are drifting in and out of consciousness, that means that their brain is severely impaired to the point that they are not aware either of themselves or their surroundings. And I believe that with that kind of evidence being evident to Mr. Frederick, I think that it was reasonable for him to think that there were compelling reasons on the grounds of his disability to doubt Mr. Bennett's capacity.

[45] Dr. Silberfeld reviewed the medical records in order to assess the probable impact of Bennett's physical condition on his mental state. He stated that it was difficult to say in detail because nobody examined his mental state but it was his view that, given the notations in the records on his physical state, [page204] Bennett's "brain was likely suffering from severe lack of oxygen, plus the impact of medications that he was given earlier in the day".

[46] When asked whether Frederick should have contacted a doctor, Dr. Silberfeld was doubtful that any expert opinion on mental capacity could have been formed given Bennett's extreme state.

[47] Finally, Brian Schnurr testified as a legal expert on estate questions, including mental and incapacity issues. It was his opinion that Frederick owed a duty to Hall to use reasonable skill, care and competence to attempt to ascertain the testator's wishes and to give effect to those wishes in a will if that was possible to do. In his view, Frederick did not obtain sufficient information to prepare a will. It was also his view that Frederick's conduct accorded with the requisite standard of care of a reasonabl[e] and prudent solicitor.

Analysis

[48] As stated earlier, it is well-settled 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. This first obligation is of fundamental importance. After all, if the testator does not have the requisite testamentary capacity, the preparation of a will in accordance with his expressed wishes at the time may only serve to defeat his true intentions.

[49] The solicitor's duty of care is, of course, owed primarily to the client. However, the appellant rightly concedes that a solicitor's duty of care may extend to a person other than the client where that other person is injured as a result of the solicitor's negligence in performing the work for which he or she was retained by the client. Hence, a solicitor who is negligent in his or her professional work may be liable not only in contract (and possibly in tort) in respect of the client, but also in tort in respect of others to whom a duty of care can be shown to exist.

[50] The Chancery Division recognized the existence of a duty of care owed by a solicitor to a prospective beneficiary under a will in Ross v. Caunters, [1979] 3 All E.R. 580, [1980] Ch. 297. In that case, the solicitors who prepared a will for a testator sent it to him for execution without warning him that the will should not be witnessed by the spouse of a beneficiary. This warning should have been given because, according to the governing statutory provisions, where a beneficiary or a spouse of a beneficiary [page205] attested a will, the gift to that beneficiary was void. The beneficiary whose spouse attested the will was successful in his claim for damages against the solicitors for negligence.

[51] The House of Lords subsequently reached a similar result in White v. Jones, [1995] 1 All E.R. 691, [1995] 2 A.C. 207 (H.L.). A solicitor who was unreasonably slow in preparing a will, such that the testator died before it was executed, was found liable to a prospective beneficiary who was not his client.

[52] The appellant submits, and in my view correctly so, that whether a solicitor does owe a duty of care to a third party beneficiary so as to found an action in negligence will depend on the circumstances. The question of whether a duty of care arises is a question of mixed fact and law to be determined by the court in accordance with the two-stage test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.), as revisited by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, 206 D.L.R. (4th) 193. At stage one of the test, the inquiry is twofold. The court must first inquire whether the harm that occurred was a reasonably foreseeable consequence of the defendant's act, and next, whether there is a sufficient relationship of proximity between the parties. At stage two of the test, the court must determine whether there are policy considerations for refusing to recognize the existence of a duty notwithstanding the findings of foreseeability and proximity.

[53] The appellant submits that, as a general proposition, no duty of care can arise with respect to the preparation of a will in the absence of a retainer between the solicitor and the client. He submits that the retainer is the anchor that grounds both the contractual duty owed to the client and the duty of care that may be owed to third parties in tort. The appellant takes the position that, in this case, no retainer to prepare a will was given or accepted. He submits that Bennett was incapable of fully conveying his testamentary intentions to Frederick. Given the incomplete instructions, Frederick never accepted a retainer to draw a will and, consequently, no duty of care arose in respect of the carrying out of Bennett's testamentary wishes.

[54] The appellant further submits that the imposition of a duty of care in any case must be fair, just, and reasonable having regard to all the circumstances. He submits that the imposition of a duty of care in respect of the preparation of a will in deathbed circumstances such as those that arose in this case would place solicitors in an untenable situation. He describes the resulting dilemma in his factum as follows:

To impose a duty of care in favour of third party prospective beneficiaries in deathbed circumstances where there is a risk that the testator lacks capacity [page206] makes solicitors in those circumstances the guarantors of third party beneficiaries' inheritances. If the solicitor determines that the testator lacks capacity and declines to draw the will, the solicitor is exposed to a suit by the third party prospective beneficiaries. If, on the other hand, the solicitor in the same situation draws the will and attends to its execution, the solicitor is exposed to a suit by the personal representatives of the estate for the costs incurred by the estate in determining that the testator lacked capacity. The result is a no-win situation for solicitors.

[55] The appellant notes further that the imposition of a duty of care as that imposed in this case ignores the important principle that a solicitor is independent from his client and under no legal obligation to accept a retainer.

[56] I will consider first the duty of care owed to the client. As a general proposition, I agree with counsel for the appellant that the existence of a retainer is fundamental to the question of duty of care. The retainer is usually the very basis of the relationship between a solicitor and a client. Hence, insofar as the client is concerned, the absence of a retainer will usually be determinative, and no duty of care will arise in respect of the preparation of a will. It is simply a matter of common sense that there can be no liability in contract for the negligent performance of services that a solicitor never undertook to perform. Insofar as any possible liability to the client in tort is concerned, in the absence of a retainer, there would have to be other circumstances that gave rise to a duty of care. Such circumstances would be unusual. For example, it is conceivable that a duty of care could arise, even in the absence of an actual retainer, where a solicitor either by words or conduct negligently represents that he will accept a retainer and the "client" relies on this representation to his or her detriment. If the reliance was both foreseeable and reasonable, a duty of care may well arise according to the usual principles governing the tort of negligent misrepresentation as set out in Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, 146 D.L.R. (4th) 577. There is no suggestion that anything of the sort happened in this case.

[57] Insofar as the potential liability in negligence to a third party is concerned, the existence of a duty of care, as stated earlier, will depend on the presence of both foreseeability and proximity. Again, it is my view that the existence of a retainer is fundamental to the question of duty of care. In the absence of a retainer, the harm that may be occasioned to the third party beneficiary by the failure to make a will may still be foreseeable but, absent exceptional circumstances, it is my view that there would be insufficient proximity between the parties to give rise to a duty of care. It is usually the retainer that creates the necessary [page207] proximity not only between the solicitor and the client but between the solicitor and the third party.

[58] In this case, it cannot be disputed that, at the very least, Frederick had undertaken to interview Bennett with a view to obtaining instructions to prepare a will. He therefore had to bring the skill of a reasonably prudent solicitor to this task. As discussed earlier, his first obligation was to inquire into Bennett's testamentary capacity before undertaking to do a will. It is my view that the evidence in support of Frederick's opinion that he did not have sufficient instructions to prepare a will and that Bennett lacked testamentary capacity was overwhelming. Indeed, in the circumstances, it is my view that his duty was to decline the retainer. I can only conclude that the trial judge's conclusions to the contrary were based on his mischaracterization of the issues, and his misapprehension of the test on testamentary capacity, both errors of law that are subject to review in this court on a standard of correctness. On the latter question, it is my view that this is yet another case where apparent lucidity has been mistakenly equated with testamentary capacity.

[59] Hence, on all the circumstances, I conclude that Frederick fulfilled any obligation that he owed to Bennett and, in the absence of any retainer to prepare a will, he owed no duty of care to Hall.

[60] While this conclusion is sufficient to dispose of this appeal, I wish to comment briefly on an additional question that was raised on appeal because of the result at trial, namely, whether it was even open to the court to found liability on Frederick's decision to decline the retainer to prepare a will. The appellant submits that such a finding runs contrary to the contractual nature of the retainer and the general principle that a solicitor is free to accept or refuse a retainer.

[61] It is neither necessary nor advisable to answer this additional question in a determinative way in this case. However, I find it important to note, if only for guidance in future cases that, in my view, it is at least questionable whether Frederick, regardless of his opinion on Bennett's capacity, could be found to be under any legal obligation to accept the retainer to prepare Bennett's will. If, for example, the facts had been otherwise and Frederick had been of the view that Bennett was able to make a will but nonetheless declined the retainer, the exigent circumstances would undoubtedly give rise to a serious question of professional conduct and, depending on all the circumstances, could form the basis of disciplinary proceedings. I note in this respect the following commentary to rule 3.01 of the Rules of Professional Conduct of the Law Society of Upper Canada: [page208]

The lawyer has a general right to decline a particular representation (except when assigned as counsel by a tribunal), but it is a right to be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation. . . .

[62] It is important to note, however, that while the Rules of Professional Conduct may inform a court's decision on the questions of duty and standard of care, they do not, in and of themselves, create legal duties that found a basis for civil liability. The question of whether a duty of care arises in a negligence action is one that must be determined according to general principles of tort law as discussed earlier. Hence, before a result such as that achieved at trial in this case is reached, a court should address the important question whether in all the circumstances the solicitor was under a legal obligation to accept a retainer.

[63] For these reasons, I would allow the appeal and set aside the trial judgment. The appellant is entitled to his costs of the trial to be assessed and to his costs of the appeal fixed at $25,000.

Appeal allowed with costs.