Lawyer Not Liable for Declining to Make a Will For a Person He Believed Did Not Have Capacity

Lawyers are sometimes called upon to take will instructions from a person who is terminally ill, with little time to live. The lawyer might be meeting for the first time with the ill person, who may be heavily medicated. What if the lawyer has some concerns that the person does not have the mental capacity to make a new will? There may or may not be time to consult with the person’s doctor. Time is of the essence.

A lawyer has a duty to take steps to determine if his or her client meets the legal criteria for mental capacity. I have written about the tests for capacity before. They are easy to state, but often difficult to apply. An estate-planning lawyer must sometimes make a difficult decision of whether he or she should go ahead with a new will, or decline to act. It is a judgment call.

About a dozen years ago, a social worker telephoned an Ontario lawyer, Mark Frederick, and asked him to see a terminally ill patient about a will. Mr. Frederick went to the hospital that very morning to meet with Mr. Bruce Bennett, who was then 79 years old. They met for a little over an hour. Mr. Bennett told Mr. Frederick that he wanted to give each of his grandchildren $100, a couple of his employees $20,000 and $10,000. He wanted to give another $10,000 and a car to a cousin, and $10,000 to another relative. He also wanted to give the store he owned to his friend Peter Hall. Mr. Frederick had a tough time getting information from Mr. Bennett, who drifted in and out of consciousness. Mr. Bennett appeared to be unable to answer questions about the nature and extent of his assets. He did not provide Mr. Frederick with any instructions concerning what he wanted to do with the rest of his estate.

Mr. Frederick declined to draft a will for Mr. Bennett. The lawyer concluded that Mr. Bennett’s health was such that he could not give complete instructions.

Mr. Bennett died later that day, without having completed a new will.

When Mr. Hall found out that Mr. Bennett had intended to leave him his store, but that Mr. Frederick had not done the will, he sued Mr. Frederick for failing to carry out Mr. Bennett’s instructions.

The trial judge found that Mr. Bennett had the testamentary capacity to make a will. The trial judge found that Mr. Frederick had a duty to complete the will, and ordered Mr. Frederick to compensate Mr. Hall for the value of the store Mr. Hall would have received under a new will.

Mr. Frederick appealed to the Ontario Court of Appeal.

Madam Justice Charron, then of the Ontario Court of Appeal, in Hall v. Bennett Estate, (2003), 227 D.L.R. (4th) 263, said that the standard required to make a will is a high one. It is not enough for the person who wishes to make a will to be able to communicate those wishes. He or she must also have a “sound and disposing” mind, that meets the criteria for testamentary capacity.


Madam Justice Charron cited an article by M.M. Litman & G.B. Robertson G.B on “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity,” setting out some errors lawyers have sometimes made in previous cases:

• 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.

In this case, Madam Justice Charron held that the main issue was not whether Mr. Bennett had capacity, but “whether a reasonable and prudent solicitor in Frederick’s position could have concluded that he did not.”

She found that Mr. Frederick had not accepted a retainer to prepare a will. He agreed to meet with Mr. Bennett, but when it became apparent Mr. Bennett could not give him sufficient instructions, he properly declined to do the will. Madam Justice Charron wrote at paragraph 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.

Accordingly, the Ontario Court of Appeal reversed the trial judge’s decision, and Mr. Frederick was not required to compensate Mr. Hall.