Graham et al. v. Bonnycastle et al., 2004 ABCA 270

• Judge: McFadyen, Berger and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 02, 2004
• Citations: 2004 ABCA 270;(2004), 354 A.R. 266 (CA)

Graham v. Bonnycastle (2004), 354 A.R. 266 (CA);

    329 W.A.C. 266

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. SE.022

Gary Garnet Graham and Linda Lucille Gordon (appellants/plaintiffs) v. Heather M. Bonnycastle and Lana G. Lien (respondents/defendants)

(0201-0343-AC; 2004 ABCA 270)

Indexed As: Graham et al. v. Bonnycastle et al.

Alberta Court of Appeal

McFadyen, Berger and Ritter, JJ.A.

August 30, 2004.

Summary:

Graham executed a will in 1984 naming the plaintiffs as equal beneficiaries of his entire estate. In 1994, Bonnycastle and Lien, lawyers, prepared a new will for Graham. Under the 1994 will, the plaintiff's each received $30,000, Graham's grandchildren each received $10,000 and the residue went to Graham's new wife and her sister. Graham died. The plaintiffs opposed the probating of the 1994 will, arguing that Graham had lacked testamentary capacity, but settled the matter. The plaintiffs sued Bonnycastle and Lien for negligence.

The Alberta Court of Queen's Bench dismissed the action, holding that Bonnycastle and Lien did not owe a duty of care to the plaintiffs. The plaintiffs appealed.

The Alberta Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 2590.1

Negligence - Particular negligent acts - Wills - Disappointed beneficiary - Graham's 1984 will named the plaintiffs as equal beneficiaries of his entire estate - In 1994, Bonnycastle and Lien, lawyers, prepared a new will for Graham - Under the 1994 will, the bequests to the plaintiffs were reduced - Graham died - The plaintiffs opposed the probating of the 1994 will, arguing that Graham had lacked testamentary capacity, but settled the matter - The plaintiffs sued Bonnycastle and Lien for negligence - The Alberta Court of Appeal affirmed that lawyers taking instructions for a new will owed no duty of care to beneficiaries under a previous will - The plaintiffs had the alternative remedy of challenging the probate of the will and could receive costs from the estate if their challenge was justified - The estate also had a remedy if it suffered loss due to solicitor negligence - There was not a sufficient relationship of proximity - There were strong policy reasons for refusing to recognize the existence of a duty, including inevitable conflicts between the client's and the beneficiaries' interests - See paragraphs 1 to 34.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Barristers and Solicitors - Topic 2590.1 ].

Cases Noticed:

Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), refd to. [paras. 12, 47].

Worby v. Rosser, [1999] E.W.J. No. 3133 (C.A.), consd. [paras. 13, 54].

Francis v. Piper (1999), 597 N.W.2d 922 (Minn. C.A.), refd to. [para. 13].

Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. D.), consd. [paras. 13, 46].

Korpiel v. Sanguinetti et al. (1999), 12 B.C.T.C. 37 (S.C.), refd to. [para. 13].

Donoghue v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1 (H.L.), refd to. [paras. 15, 47].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 16].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 16].

Hall v. Bennett Estate et al. (2003), 171 O.A.C. 182; 227 D.L.R.(4th) 263 (C.A.), refd to. [para. 16].

White et al. v. Jones et al., [1995] 1 All E.R. 691; 179 N.R. 197 (H.L.), consd. [paras. 19, 49].

Earl v. Wilhelm et al. (2000), 189 Sask.R. 71; 216 W.A.C. 71 (C.A.), refd to. [para. 21].

Clarke v. Bruce Lance and Co., [1988] 1 All E.R. 364 (C.A.), refd to. [para. 26].

Sutherland v. Public Trustee, [1980] 2 N.Z.L.R. 536 (S.C.), refd to. [paras. 26, 48].

Kamahap Enterprises Ltd. v. Chu's Central Market Ltd. (1989), 1 C.C.L.T.(2d) 55 (B.C.C.A.), refd to. [para. 26].

White et al. v. Jones et al., [1993] 3 All E.R. 481 (C.A.), refd to. [para. 29].

Biakanja v. Irving (1958), 49 Cal.2d 647; 320 P.2d 16 (Cal. S.C.), refd to. [para. 46].

Counsel:

R.W. Calvert, Q.C., for the appellants;

J.S. Peacock, Q.C., and T. Burnett, for the respondents.

This appeal was heard on March 2, 2004, by McFadyen, Berger and Ritter, JJ.A., of the Alberta Court of Appeal. The following decision was delivered at Calgary, Alberta on August 30, 2004, when the following opinions were filed:

McFadyen, J.A. (Ritter, J.A., concurring) - see paragraphs 1 to 34;

Berger, J.A. - see paragraphs 35 to 61.