Family members challenging a will could not also hold the drafting lawyer liable simply because an earlier will had benefited them, Manitoba’s Court of King’s Bench ruled. The lawyer’s duty to follow his client’s instructions did not become a duty to preserve a non-client’s expected inheritance.
In McPhee et al. v. The Estate of Robert David McPhee et al., 2026 MBKB 60, issued May 4, 2026, Justice Rempel granted summary judgment dismissing the claims against lawyer Kyle Soble, his law corporation, firm and personal holding company. The ruling did not validate the disputed will or end the remaining estate litigation.
A new will changed the intended inheritance
Soble prepared a will for Robert McPhee in 2017 and a replacement in 2020. The earlier document named one son as executor and sole residual beneficiary if McPhee’s wife died first. The later will, made after her death, put the other son in those roles and disinherited the previously named son.
Two family members sought to overturn probate of the later will and restore the earlier one. They alleged lack of testamentary capacity and undue influence, while also suing the lawyer-related defendants for negligence, negligent misrepresentation and breach of fiduciary duty. Those allegations about the will’s validity remained matters for trial.
The plaintiffs had never been Soble’s clients. They did not allege that a drafting slip had accidentally deprived them of a gift their relative instructed the lawyer to include in the 2020 will. Their argument instead sought a duty arising from their position under the previous will.
On the motion record, Soble’s evidence that the later will accurately reflected the instructions he received was not contradicted. He had confirmed the client’s wishes, and the client expressly rejected a proposed codicil that would have divided the residue between his sons. The judge separately rejected an allegation of coaching during a recorded meeting as unsupported speculation that had not fairly been put to Soble in cross-examination.
A narrow exception protects intended gifts, not every former beneficiary
The court explained that a lawyer’s primary obligation is to carry out the client’s lawful instructions competently and honestly. A narrow third-party beneficiary rule can nevertheless permit a claim where negligent drafting fails to carry out those instructions and deprives an intended beneficiary of the gift the client meant to leave.
That exception did not fit these plaintiffs. Their interests under the earlier will did not align with the instructions given for the later one. Imposing a duty to protect the former inheritance would put the lawyer in conflict with the client’s decision to change it.
The same reasoning defeated the proposed fiduciary duty. Any parallel obligation to an intended beneficiary must reflect the obligation to fulfil the testator’s instructions; it cannot independently require loyalty to a former beneficiary whose interests conflict with those instructions. The court also identified the risk to client confidentiality if lawyers had to answer to people disadvantaged by changes to a will.
The plaintiffs argued that suspicious circumstances and their relative’s alleged vulnerability required heightened protection of their interests. The judge distinguished that contention from the rules governing proof of a will. Questions about capacity and the lawyer’s assessment of it could be tested in the validity challenge, but did not establish a new duty to these non-clients.
Foreseeable disappointment or financial loss was not enough. A negligence claim also required a sufficiently close legal relationship to make a duty fair and just. The record did not establish that proximity between Soble and the plaintiffs, and relabelling them the true beneficiaries did not resolve the contested validity of the later will.
No representation or reliance supported the alternative claim
For negligent misrepresentation, the plaintiffs argued that accepting the will-drafting retainer implicitly represented to them that Soble would act competently, assess capacity properly and refuse instructions if warranted. The court rejected the attempt to transfer representations to a client into representations to third parties.
The applicable test required a special relationship, a false or misleading representation made negligently, reasonable reliance and resulting loss. The plaintiffs established neither a relevant representation made to them nor reliance on one. There was no causal link between a representation by Soble and an action or omission by the plaintiffs causing compensable loss.
The will challenge remained separate
Summary judgment required the moving defendants to show that the record allowed a fair and just decision and that no genuine issue required a trial. Their persuasive burden remained with them. The court found the lawyer-duty claims discrete enough to decide without resolving the estate’s remaining disputes.
The decision did not excuse lawyers from assessing a client’s capacity or remove remedies for negligent failure to carry out testamentary instructions. It distinguished those obligations from a claimed duty to preserve an earlier beneficiary’s position. Nor did it presume that a person with diminished capacity is automatically unable to make a will.
Soble could still be called as a witness in the will challenge, and his communications and steps before execution could be tested in cross-examination there. Removing him and the related defendants did not prevent the plaintiffs from pursuing their allegations about whether the 2020 will was valid.
The court dismissed the action against the four lawyer-related defendants and removed them as parties. Costs were left for submissions rather than fixed in the reasons. No estate distribution, damages award or final ruling on testamentary capacity followed from this judgment.
