Case Brief: Graham v. Bonnycastle Assignment

Assignment Task

Style of Cause: Graham v. Bonnycastle

Procedural History: This is an appeal by the plaintiff to the Alberta Court of Appeal from the trial decision of the Court of Queen’s Bench. The Court of Queen’s Bench dismissed the plaintiff’s claim.

Facts: The appellants are Gary Graham and Linda Gordon, the two children of the deceased Archie Graham. Under his Original Will, Archie Graham named his children as joint executors and equal beneficiaries of his entire estate. Shortly before his death, he married and executed a New Will that granted a portion of his estate to his sister and new wife and another portion to the appellants. The appellants, the wife and sister launched actions against each other, and the matters were settled under a Settlement Agreement. Heather Bonnycastle and Lana Lien, the lawyers who took Archie Graham’s instructions for the New Will, were the respondents in this action. The appellants claimed as damages the difference between the bequests they would have received under the Original Will and the benefits they received pursuant to the Settlement Agreement.

Issue: Does a solicitor owe a duty of care to a beneficiary under a previous will in relation to the solicitor's conduct in assisting a testator in the preparation and execution of a new will?

Decision: Appeal dismissed.

Ratio Decidendi: Solicitors do not owe a duty of care to beneficiaries under a previous will when taking instruction from the testator for a new will.

Rules:

The requisite proximity for imposing a duty of care is established under the test set by Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) and adopted by the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537. The general rule is that a solicitor owes a duty of care only to his client and not to any third parties. This has been modified to include a duty to the intended beneficiary under a will, who does not, as a result of the solicitor's negligence, receive a benefit that the testator intended to grant. There is no general duty to third parties to take care. In Ross v. Caunters, Megarry VC said: “The duty owed by a solicitor to a third party is entirely different There is no trace of a wide and general duty to do all that properly can be done for him. Instead…there is merely a duty, owed to him as well as the client, to use proper care in carrying out the client's instructions for conferring the benefit on the third party.”

Application

Courts have consistently refused to extend a duty to solicitors in which a third-party beneficiary's interests have the potential to conflict with those of the testator/client, as it is in this case. The appeal judge also found that there was not a sufficient relationship of proximity to justify a duty of care in this case.

Obiter

The appeal judge said that the imposition of a duty to beneficiaries under a previous will would create inevitable conflicts of interest since the interests of a beneficiary under a previous will are inevitably in conflict with the interests of the testator who wishes to revoke or reduce a bequest to that beneficiary. Solicitors may be reluctant to act for elderly testators who wish to change provisions of their will, if they may also be liable for damages to beneficiaries under previous wills.

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