When a lawyer makes an error in drafting a client’s will, they may be subject to a negligence claim by a beneficiary who suffers a loss as a result. Such beneficiaries are known as “disappointed beneficiaries.” In 2003, the Court of Appeal made clear that, while the lawyer’s duty is primarily owed to their client, that duty of care may extend to disappointed beneficiaries (see Hall v. Bennett Estate).
Recently, in Tessaro v. Gora, the Superior Court of Justice considered the effect of a limitation period on a claim brought by a disappointed beneficiary against a lawyer. The case reinforces the need for clients to have their wills regularly reviewed to ensure the beneficiaries named in their wills are protected.
Testator Died Over 25 Years After Signing His Will
In Tessaro v. Gora, the testator retained a lawyer in 1991 to draft his will, which he signed in November of that year. He passed away in July 2018. The testator had three sisters, one of whom predeceased him. That sister left two daughters, the plaintiffs in the case, along with the testator’s two surviving sisters.
The language used in the will made it unclear whether the two surviving sisters were to share in the estate alone or whether the estate was to be divided amongst all three sisters, with the share of the predeceased sister being split amongst her daughters.
The predeceased sister’s and surviving sisters’ daughters commenced an action against the lawyer who prepared the will. The purported beneficiaries claimed they received less than the testator had intended because of the lawyer’s negligence in drafting the will.
What Is the “Ultimate Limitation Period”?
The issue before the Court was whether the beneficiaries’ claims should be dismissed because of the expiry of the 15-year limitation period set out in section 15(2) of the Limitations Act, 2002. This limitation period is known as the “ultimate limitation period”. It provides that no proceeding shall be commenced after the 15th anniversary “of the day on which the act or omission on which the claim is based took place.”
Under section 24(5) of the Limitations Act, 2002, where a limitation period did not expire before January 1, 2004, the statute treats an undiscovered act or omission as having occurred on that date.
The defendant lawyer argued that the basis of liability alleged by the plaintiffs was negligent will drafting in 1991. Since the beneficiaries’ claims had not been discovered by January 1, 2004, section 24(5) of the Limitations Act, 2002 applied and meant that the lawyer’s act or omission had occurred on that date. Applying the ultimate limitation period thus meant the plaintiffs’ right to bring a claim had expired on January 1, 2019 (15 years after January 1, 2004).
The plaintiffs argued that a will only takes effect on the date of death of a testator. Beneficiaries have no rights under a will until that occurs. Since they have no rights, they cannot sue the drafting lawyer before the testator dies since the testator can change or revoke the will right up until the time they die. The plaintiffs argued that a beneficiary can have no cause of action before that time. If the ultimate limitation applied to bar a claim before a will even takes effect, it would create an injustice to anyone who suffered a loss “any time the testator lives more than 15 years from the date he or she signs a will.”
The Court thus had to determine whether “the day on which the act or omission on which the claim is based” (for the purpose of the ultimate limitation period) was the day the will was drafted or the day the testator died (which is when the will took effect).
Principles of Statutory Interpretation Necessary to Resolve Limitation Period Dispute
The Court noted the requirement to examine the words used in the Limitations Act, 2002 in the context of the purpose of the ultimate limitation period. It observed that, as a fundamental principle of fairness, a person should know they have a right to sue before the clock starts running to take that right away. However, limitation periods are imposed to avoid “indeterminate liability.” In other words, they are imposed to “promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts.” They are also imposed to guard against the deterioration in the quality of evidence over time. Limitation periods thus serve to balance a variety of different policies.
The Court also noted that the legislature had considered the possibility of removing a right to sue before it was discovered when the Limitations Act, 2002, was being debated.
The Court concluded that the legislature had settled upon the ultimate limitation period for a reason. The fact that the statute did not contain an exception that might apply in the circumstances was intentional on the part of the legislature, even though it might mean a claimant could lose the right to sue before they discovered it.
What Are the “Acts or Omissions” on Which Potential Liability Was Based?
The Court found the claims of the disappointed beneficiaries were based on the lawyer’s drafting of the will in 1991. It noted the testator “had more than 25 years to look at the will and have it fixed if it did not carry out his intention.” The Court indicated the legislature had determined that “people should not be at risk of being sued beyond 15 years after they did the acts objected to (or omitted to do acts they were duty-bound to do).” As such, it found it had no leeway to interpret the ultimate limitation period in such a way as to defer the commencement of the limitation period to the date of death of the testator. The claims were thus statute-barred.
Case Underlines Importance of Regularly Reviewing Your Will
One of the arguments made by the defendant lawyer was that wills lawyers should advise clients to check their wills “at least every 15 years.” While the Court did not expressly affirm this advice, it is supported by the Court’s finding. Testators should regularly review their wills, particularly in the event of any significant life changes, to ensure it still gives effect to their wishes and beneficiaries are not left without a legal remedy against a negligent lawyer.
Contact Bader Law for Wills & Estates Advice in Mississauga & Oakville
The knowledgeable wills and estates lawyers at Bader Law provide trusted estate planning, probate, and estate administration services in Mississauga, Oakville, and the surrounding areas. They are available to discuss your succession planning needs and to provide advice to ensure your loved ones are adequately protected. Contact us online or by phone at (289) 652-9092 for a consultation.