Meier v Rose 2012 CarswellAlta 185 is a good example of a lawyer’s negligence in the preparation of a last will and testament, and the consequent damages awarded by the court against the lawyer in favor of the intended beneficiary who did not inherit.

The testator had given instructions to the solicitor to prepare a will for the next day.

The will was to have the provision specifically bequesting certain lands to the brother of the testator.

The solicitor prepare the will after obtaining the legal description of the property, but without properly ascertaining the ownership of the lands, and in particular, to verify that the deceased did in fact own the lands.

The deceased in fact did not own the lands at the time of his death, as they were owned by his limited company.

Accordingly the gift to the brother failed, and the brother subsequently brought action against the lawyer for negligence.

The action was allowed and damages in the amount of $482,200 were awarded.

The court found that the lawyer owed a duty of care not just to his client the testator, but also to the intended beneficiary of the lands.

The lawyer’s duty of care in carrying out the testator’s instructions in order to effectively confer the intended benefit to the brother, should have included the proper and necessary inquiries into the ownership of the lands, such as a land title search would have indicated.

If the lawyer had not been negligent in failing to ascertain the ownership of the lands, then the gift to the brother would not have failed.

For further reading on this topic please see the disinherited.com article entitled “Disappointed Beneficiary? Sue the Lawyer.