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Estates - Solicitor's Liability. Stingelin Estate v. Woods
In Stingelin Estate v. Woods (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an order granting summary judgment dismissing [SS: the appellant's] negligence and breach of fiduciary duty claims against the respondent, a lawyer retained to prepare the will of his aunt".
The court considers the duty of care owed by a solicitor to non-clients, here in a will-drafting context:2. Duty of care
[20] It is undisputed that the respondent was retained by Sabina and not by the appellant. The motion judge found there was no solicitor-client relationship between the respondent and the appellant, and no basis on the evidence to conclude that the respondent undertook to act for him.
[21] A lawyer ordinarily owes duties only to the client. Courts have recognized a narrow exception in will-drafting cases where the testator’s solicitor negligently fails to confer an intended benefit on an identified beneficiary under the will: Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. Div.); White v. Jones, 2 A.C. 207 (H.L.); Hall v. Bennett Estate (2003), 2003 CanLII 7157 (ON CA), 64 O.R. (3d) 191 (C.A.), at paras. 49-52. But the existence and scope of any such duty remain dependent on the circumstances. In Hall, this court held that the retainer is fundamental to the proximity analysis and that, absent a retainer to prepare the will, no duty arose to the prospective beneficiary: at paras. 56-59.
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[23] The appellant’s theory would require recognition of a new duty of care extending beyond the limited class recognized in the will-drafting cases. The motion judge made no error in declining to recognize such a duty. Such a duty requires foreseeability and proximity: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at para. 18. Neither requirement is met.
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[26] Courts have repeatedly refused to extend the narrow will-drafting duty to beneficiaries under prior wills or to persons asserting that the testator would have made different testamentary arrangements if given different advice: Graham v. Bonnycastle, 2004 ABCA 270, 243 D.L.R. (4th) 617, at paras. 17-19, 22-23, 26, 29, leave to appeal refused, [2004] S.C.C.A. No. 489; Harrison v. Fallis, 2006 CanLII 19457 (Ont. S.C.), at paras. 24-29; Johnston Estate v. Johnston, 2017 BCCA 59, 92 B.C.L.R. (5th) 223, at paras. 31-37.
[27] The motion judge, therefore, correctly concluded that no duty of care existed.
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