However, the application wasn’t filed before the limitation period expired, and as a result, Proudfoot wasn’t able to pursue the action to alter the will.
Instead, he then sued the lawyer seeking damages.
According to the court’s decision, the defendants “admitted that they breached the standard of care owed to the plaintiff … and breached a term of their contract with the plaintiff by failing to file the action within the limitation period.”
To assess damages, the court then held a “trial within a trial” to determine whether the plaintiff would have succeeded in his application, if it had been filed in time.
Ultimately, it concluded that the plaintiff would have been entitled to a larger share of his mother’s estate.
“… The plaintiff would have been awarded $115,000 if his action to vary mother’s will had proceeded to trial,” it concluded.
As a result, it ordered $115,000 in damages against the lawyer, plus interest. Additionally, the court estimated that the costs of pursuing that action would have been $43,000, which was subtracted from the damages award.
“The plaintiff is entitled to recover the net benefit he lost due to the failure to bring the wills variation action within the limitation period. Costs that he would have incurred in prosecuting the wills variation action must be accounted for,” it said.