Tuesday, February 21, 2017
When a lawyer makes a new will for a client, does the beneficiary under the earlier will have rights?
Posted by Lynne Butler
In British Columbia recently, an interesting question was asked: Can a lawyer make a new will for a client without telling (or asking) a person who was the beneficiary under the client's previous will? Does the person who is a beneficiary under a will have any rights if the testator decides to make a new will that reduces or eliminates that beneficiary's inheritance?
Here is the situation. In 2007, Norman and Barbara Johnston made mirror wills. The wills said that they left everything to each other, and upon both of them being deceased, the entire estate would go outright to their son, David. In 2010, Barbara died. In 2012, Norman made a new will. He left a couple of small bequests to family members, and made a gift of $100,000 to his church. He then left the residue of the estate to David in trust for his lifetime, with the Public Trustee named as the trustee of David's inheritance.
David wasn't happy about this. After Norman died in 2013 and David found out about the new will, he decided to contest the will. Among other things, he argued that the lawyer who made the 2012 will, who was the same lawyer Norman had used all along, could not make this new will because he owed a duty of care to David. He lost his case at trial. He then appealed it, and lost on appeal. (If you're wondering how long court cases take, this case was concluded in December, 2016)
To read the full case report, click here: Johnston Estate v. Johnston.
The court confirmed that when a lawyer is asked by a client to make a will, the lawyer owes nothing at all to any beneficiaries who were named under previous wills. The lawyer's duty is to his or her client to make a will that meets the client's needs and wishes.
The court was also careful to point out that a lawyer does have some responsibility towards the beneficiaries under the new will. For example, if the lawyer took way too long to draft the will and the client died before the will was completed, and this caused a beneficiary to lose out on an inheritance, the lawyer could be held liable for that loss.
I think it's important to discuss this case because executors and beneficiaries alike misunderstand the rights they may or may not have under a will while the testator is still alive. In this case, it appears that David launched a long, expensive lawsuit based on rights he never had in the first place.