NOTE: This article was published in September 2012 and reflects the law as it stands on the date of publication and not at any later date.

White v Jones

The starting point for liability to beneficiaries for loss caused by negligence, pursuant to a retainer to prepare a Will, is the House of Lords decision in White v Jones [1995] 2 AC 207. In White v Jones the testator quarrelled with his two daughters, and executed a Will cutting them out of his estate. He was then reconciled with his daughters. On 17 July 1986 the defendant firm of solicitors received a letter from the testator asking them to prepare a new Will to include legacies of £9,000 each to his daughters. The testator died on 14 September 1986, without the new Will having been put in place (59 days after receipt of the letter of instruction). The defendant firm of solicitors were guilty of negligent delay.

The issue was whether the negligent solicitors owed a direct duty of care in tort to the daughters as disappointed beneficiaries who, but for the solicitor’s negligent delay in preparing the Will for execution, would have received legacies of £9,000 each. The argument against liability was that the solicitors’ only duty was to the testator pursuant the solicitor-client retainer, i.e. in contract. The daughters’ claim was for pure financial loss in respect of a lost expectation of benefit under a Will. Such a claim could, on previous authority, only be made in contract, not in tort. However, there was no contractual relationship between the firm of solicitors and the daughters.

Despite the absence of any contractual relationship between the solicitor and the beneficiaries, the daughters were awarded a cause of action in tort to recover damages equal to the value of the legacies to which they would have been entitled under the Will (£18,000).

The rationale is set out in Lord Goff’s judgment. The assumption of responsibility by the solicitor towards his client extended to the intended beneficiary who (as the solicitor could reasonably foresee) might, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.

The essence of the duty to the beneficiaries is the duty of the solicitor to ensure that effect is given to the testator’s intentions to benefit third parties, i.e. potential beneficiaries (per Chadwick L.J. said in Carr-Glynn v Frearsons [1999] Ch 326, at 337E). Therefore, there will only be a breach of duty in tort to the claimant beneficiaries, if there is also a breach of the retainer with the testator.

Loss to beneficiaries, not to estate

The key point was the extraordinary fact that, if a duty of care to the disappointed beneficiary was not recognised, the only persons who might have a valid claim (the testator and his estate) had suffered no loss, and the only person who had suffered a loss  (the disappointed beneficiary) had no claim.

In White v Jones the testator had suffered no loss. He had died. His estate had suffered no loss. The value of the estate was unaffected by the solicitor’s negligence. The consequence of the negligence was that the “wrong” persons had benefited from the estate, to the extent of £18,000.

The daughters had suffered a loss. They had not received legacies of £18,000. However, they had no contractual claim. If they were not given a remedy in tort, the solicitors would get off scot-free, and there would be a “lacuna” in the law.

There was an impulse to do practical justice by giving the disappointed beneficiaries a remedy in tort. It would be unacceptable if, because of some technical rules of law, the wishes and expectations of testators and beneficiaries generally could be defeated by the negligent actions of solicitors without there being any redress.

It did not matter that the beneficiaries had not relied upon the solicitor, as the foundation of liability is an assumption of responsibility by the solicitor. As Lord Browne-Wilkinson said, what is important is not that A knows that B is consciously relying on A, but that A knows that B’s economic well being is dependent upon A’s careful conduct of B’s affairs (272A). Since the solicitor had assumed a responsibility to do something, it was no objection that there is generally no liability in tort for a pure omission unless the defendant is under a pre-existing duty.

The decision was ground-breaking. It had long been thought that no duty was owed to a disappointed beneficiary on the basis that the solicitor only owed a duty in contract, and that there was no privity of contract with the beneficiary. There was only one English decision in which the Court had found that a duty was owed by a solicitor to the beneficiaries of a Will (Ross v Caunters [1980] Ch 297). However, that decision was of doubtful validity.

 

Application to Wills

The key aspects of a White v Jones liability are:

(a)  There is a retainer to prepare a Will.

(b)  The Will is not prepared or executed before the death of the client, or after death it emerges that the Will is invalid or defective due to the negligence of the professional.

(c)  In consequence, the intended or disappointed beneficiaries suffer loss of the testamentary gift which the client had wanted them to have.

(d)  The testator and his estate have suffered no loss, as the intention was to benefit a third party.

Duty to beneficiaries dependent on duty to testator/exclusion clauses

The duty owed to the beneficiaries is not independent of the duty owed to the testator. As Chadwick L.J. said in Carr-Glynn v Frearsons [1999] Ch 326, at 337E:

The duty owed by the solicitor to the specific legatee is not a duty to take care to ensure that the specific legatee receives his legacy. It … is a duty to take care to ensure that effect is given to the testator’s testamentary intentions.

In consequence: (a) the duty owed in tort by the solicitor to the intended beneficiary and the duty owed in contract by the solicitor to his client are for all practical purposes one and the same; and (b) the nature and extent of the duty is determined by any terms of the retainer which may exclude or restrict the solicitor’s liability to the testator.

In White v Jones [1995] 2 AC 207 Lord Goff considered that the assumption of responsibility by a solicitor would be subject to the terms of the contract between the solicitor and the testator which may exclude or restrict the solicitor’s liability to the testator (268G-H). If, therefore, the solicitor and the testator have agreed that no action needs be taken to prepare the Will during a specific period, e.g. because the solicitor will be away from work during that period, the solicitor cannot be liable to the beneficiary if the testator dies within that period  (Trusted v Clifford Chance [2000] WTLR 1219).

It should, therefore, be possible to exclude liability to beneficiaries for delay in preparing a Will by agreeing with the testator that the Will need not be prepared and ready for execution for, say, 21 days. However, the solicitor had better abide by any time-limit!

It also follows that a solicitor will not be liable to a beneficiary for failing to prepare a Will where the solicitor has declined to accept the retainer on the grounds of the testator’s lack of testamentary capacity (see the Canadian case of Hall v Estate of Bruce Bennett [2003] WTLR 827).

Fixed, continuing intention

It may be that the instructions never became fixed and final. In Trusted v Clifford Chance [2000] WTLR 1219 the testator never reached the position where he could give the solicitor definite and comprehensive instructions as to the dispositions of his estate to be effected by his proposed Will (1257G). There was, therefore, no liability. It is, therefore, a defence for a solicitor to claim that he had not received fixed and final instructions, only provisional ones.

 

Even if clear and final instructions are given, there may be an issue as to whether the testator’s intention remained fixed up to the date of his death. If, say, a solicitor has failed to prepare a Will before the death of the testator, benefiting X, it may be a defence that the testator had changed his mind before death, and would not have made a Will in favour of X had the Will been prepared in time. However, it is not to be assumed that the testator has changed his mind, unless there is positive evidence of a change of mind, rather than simply having second thoughts (Humblestone v Martin Tolhurst Partnership [2004] PNLR 26).

 

It is certainly not safe for a solicitor to assume that the testator has changed his mind, merely because the solicitor is not chased by the testator. In Bacon v Kennedy [2001] WTLR 169 instructions for a Will were given an astonishing 9 years before the deceased’s death; no Will was executed in the meantime. The testator had repeated his instructions. However, the solicitor did not prepare the Will, and the testator did nothing to pursue the matter. The solicitor was held to be liable to the beneficiaries of the intended Will.

By whom duty owed

The duty is owed by any professional person who has undertaken the preparation of a Will or has advised in regard to a Will intending to benefit a third-party, or to any company offering itself out as offering a similar Will-making service to a solicitor (Esterhuizen v Allied Dunbar [1998] 2 FLR 668). In this paper, references to solicitors should, therefore, be taken to include professional Will draftsmen.

 

Delay in preparing Will

A solicitor, instructed to prepare a Will, is under a duty of reasonable care to present the Will for execution within a reasonable time. If the testator dies or becomes incapable before the Will has been so presented, and the delay is unreasonable in all the circumstances, the solicitor may be liable in damages to an intended beneficiary who has suffered loss by reason of the delay.

Time may start to run from the date when the testator makes the solicitor aware of the essence of an intended Will (see Smith v Claremont Haynes & Co, Times, 3 Sept, 1991 where the solicitor failed to attend on the testator to take formal instructions for 33 days by which time the testator had become incapable. Such delay plainly amounted to negligence).

White v Jones was itself a case of delay in drafting the Will. In that case there was a delay of 59 days between the giving of written instructions and the death of the 78 year-old testator. Such delay, not surprisingly, was held to be unreasonable. However, there was no consideration as to what time period would normally be regarded as reasonable.

In X v Woolcombe Yonge [2001] Lloyds Rep PN 274 a delay of 6 days between a request for an appointment and death was held not to be unreasonable in the case of a hospitalised 55 year old, terminally ill, cancer sufferer with no imminent expectation of death. The solicitor had prepared a Will which would have been ready for execution in 8 days. The solicitor took a view, which a reasonable solicitor could perfectly well have taken, that this was not an unreasonable period of delay, given that there was no reason to suspect that imminent death would occur.

Where, however, there is a real prospect (which may be less than a 50% chance) of imminent death, it may be negligent not to draw up a Will or Codicil, if necessary by hand, for immediate execution, as a holding operation.

In Doidge v Bright Broad & Skinnard, The Lawyer 20 April 1993, there was a delay of 15 days between the request for an appointment and the Will being engrossed. The testatrix died, before the Will was executed, after 18 days. She was 92, but not obviously in bad health.  The delay was held not to have been unreasonable, given the state of the testatrix’s health. This may be regarded as a generous decision to the solicitor, given the age of the testatrix.

It is dangerous for a solicitor to cancel an appointment with an elderly client, who is in hospital, without making inquiries as to the state of the client’s health, so as to be satisfied that any additional delay will not be to the detriment of the client (see Hooper v Fynmores [2001] WTLR 169). In Hooper the solicitor cancelled an appointment, for the Will to be executed, due to his own hospitalisation. However, if (as he should have done) he had made enquiries, he would have discovered that the client was gravely ill, and he could have arranged for another solicitor to attend. There was a delay of about 12 days between the request for an appointment and the death of the client. This amounted to negligence in the case of an 83 year old client, who had been in hospital for about 1 month when the appointment was requested.

The solicitor will not be liable to a beneficiary in respect of any period of delay to which the client consents (Trusted v Clifford Chance [2000] 1 WTLR 1219). However, the client should be given the chance to instruct another solicitor if such delay is unacceptable. His consent should also be given in writing.

There may be reasons for delay, e.g. the need to take tax advice. If so, the client should be advised as to the possibility of making a holding Will, and there should be an agreed time-frame for the production of the Will based on a full consideration of the tax position.

In conclusion, there is no standard period of reasonable delay. However, in the case of a client who is not old or ill, a period of up to 21 days between initial contact and production of the Will for execution might be thought to be reasonable. If, however, the client is either old or ill (but not very), 14 days might be more appropriate. If there is a real risk of imminent death or incapacity, it may be negligent not to prepare a Will immediately.

Failure to chase up client to execute Will

It is not clear to what extent there is a duty to chase up a client to execute a Will which has been sent to the client for execution. In Atkins v Dunn & Baker [2004] WTLR 477 a draft Will was sent to the client seeking his approval prior to preparing the engrossment. There was no response from the client, who died intestate 3 years later. The Court of Appeal held that “in the circumstances of this case” the Recorder had been entitled to hold that the ball was in the client’s court and that the failure to send a reminder did not constitute such a fall below the standard to be expected of a competent solicitor as to amount to negligence. However, it was accepted that there will often be situations where there is a duty to send a reminder to the client. However, the circumstances in which such a duty would arise are not spelt out. It would no doubt be advisable to send a reminder letter if nothing has been heard after, say, 14 days.

Inadequate advice as to execution

There is a clear duty to take proper care in advising the testator as to the procedure to be followed for the valid execution of a Will, if the solicitor is not to be present at the execution (Gray v Richards Butler [2000] WTLR 143, at 157D). Clear written instructions (it is suggested, in a standard form) should be given to the testator as to mode of execution.

If there is a failure to advise clearly or at all as to proper execution, the breach of which invalidates the Will, there may be a liability to a disappointed beneficiary (see Ross v Caunters [1979] 3 All ER 580). If the solicitor does actually supervise execution, but fails to ensure that the Will was validly executed, the solicitor will be liable to the disappointed beneficiaries (Hill v Van Earp (1977) 71 AJLR 457).

Points to watch out for are:

(a)  The testator must sign the Will. In Humblestone v Martin Tolhurst Partnership (a firm) [2004] EWHC 151, the Will had not been signed by the testator, and this was not picked up by the firm of solicitors when the Will was checked.

(b)  The testator must intend by his signature to give effect to the Will (s. 9(b) of the Wills Act 1837). He must, therefore, sign the right Will.

In Marley v Rawlings [2012] EWHC Civ 61 Mr and Mrs Rawlings signed mirror Wills leaving their respective estates to the surviving spouse but, if the spouse failed to survive, to their adopted son. Unfortunately, Mr Rawlings mistakenly signed Mrs Rawlings’ Will, and vice versa. The Judge at first instance held that the Will Mr Rawling (the survivor) was invalid on the grounds that he did not intend by his signature to give effect to the Will that he had signed (s. 9(b) of the Wills Act 1837). His intention may have been to execute a Will, but not the Will that he had before him. This decision was upheld on appeal.

(c)  Indeed, the testator must intend that the Will should have immediate effect when he signs the Will. A Will cannot be validly executed with the intention that it should only take effect at some future time as and when certain conditions or contingencies exist or have been satisfied.

In Corbett v Newey [1998] Ch 57 the testatrix signed, but did not date, her Will. She returned the undated Will to her solicitors who knew that she intended that it should not to be dated and was only to take effect once certain lifetime gifts had been completed. The solicitors duly dated the Will only after the lifetime gifts had been completed. The Will was set aside on the basis that the testatrix did not have any animus testandi when she signed the Will because she did not intend it to have immediate effect. The beneficiaries of the defective Will commenced a negligence action claiming that the solicitors owed them a duty of care to ensure that the Will was validly executed. The claim was compromised on terms that the claimant beneficiaries received the full amount of their entitlement under the Will.

(d)  The testator must sign the Will, or acknowledge their signature, in the presence of two or more witnesses present at the same time (s. 9(c) of the Wills Act 1837). Both witnesses must, therefore, be present at the same time when the testator signs or acknowledges his signature (Gray v Richards Butler [2000] WTLR 143).

(e)  Both witnesses must attest and sign the Will, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness). A Will is, therefore, invalid if witnessed by only one witness (Esterhuizen v Allied Dunbar Assurance [1998] 2 FLR 668). It will also be invalid if either witness does not attest the Will in the presence of the testator.

(f)    The witnesses must sign with the intention that their signature should be an attestation of the Will, although there is a presumption that a person signing at the end of a Will does so as a witness.

(g)  A beneficiary or a spouse of a beneficiary should not attest a Will, if the gift to that beneficiary is to be valid (s. 15 of the Wills Act 1837). A solicitor was negligent in failing to warn the testator that the Will should not be witnessed by the spouse of a beneficiary (Ross v Caunters [1980] Ch 297).

Failure to supervise execution

Is there a duty to supervise?

In Esterhuizen v Allied Dunbar Assurance [1998] 2 FLR 668 it was held that the solicitor has a duty to supervise the execution of the Will personally. In that case the Will, in favour of two friends of the testator, was invalid because it was not attested by two witnesses in accordance with the Wills Act 1837. The entire estate passed on intestacy to the testator’s adopted daughter. The testator had been advised in writing that two witnesses were required. However, Longmore J determined that to leave written instructions and do no more was not enough. There was a duty to take reasonable steps to assist the testator in the execution of his Will, by inviting the testator to the Will-preparer’s offices to execute the Will, or by visiting his home with another member of staff. A testator can expect reasonable assistance in regard to the process of execution and attestation, even if no express request for such assistance is made.

The decision in Esterhuizen may appear somewhat harsh, given that clear written instructions were given to the testator as to the need for two witnesses; Longmore J commented that the testator probably understood this advice; and the standard attestation clause makes it clear that two witnesses are required. Alternatively, the requirement to supervise execution should be limited to a case where the solicitor has reason to believe that the testator is incapable of arranging execution for himself.

Esterhuizen is also inconsistent with Gray v Richards Butler [2000] WTLR 143. In Gray the Will was invalid as the witnesses were not both present at the same time when the testatrix signed the Will. The Will had been left with the client for execution. However, the solicitor had left with the testatrix a standard set of instructions on execution, described by Lloyd J as “most comprehensive”. The solicitor’s conduct was held not to have fallen short of that required of a reasonably competent solicitor. Lloyd J also commented (158C) that the attestation provision in the Will made clear the vital need for the witnesses to be present together when the testatrix signed the Will (a point supported by Re Groffman, Groffman and Block v Groffman [1969] 2 All ER 108 at 109).

 

Testator’s competence to follow instructions

There is some difference in view between the first instance High Court Judges in Gray and Esterhuizen as to the relevance of the testator’s apparent competence to understand instructions.

In Esterhuizen the testator was found to have lacked the intellectual equipment or frame of mind to arrange execution for himself. Longmore J decided that the solicitor should personally have supervised execution. However, he does not seem to have based this conclusion on the client’s lack of capacity. He stated that it was not sufficient to leave written instructions even “in ordinary circumstances” which must, presumably, include circumstances where the testator is clearly capable of following instructions. He also rejected the suggestion that the extent of the duty might depend on how competent or intelligent the testator was perceived to be (but somewhat confusingly conceded that that “actual performance” of the duty might vary according to the solicitor’s perception of his client).

In Gray, Lloyd J considered that the extent of the solicitor’s duties in any given situation may depend on who the client is and the view that the solicitor has formed, or ought to have formed if acting with reasonable competence, as to the ability of the client to understand and follow advice as to the relevant procedures (157E-F). Although there was evidence from a friend, and also from the son, of the testatrix that executing the Will without expert help would have been an “unclimbable mountain” for the testatrix, Lloyd J found that she was not stupid and that she was capable of following procedures, such as those involved in the valid execution of a Will, if they were properly explained to her.  In any event, in assessing a person’s capacity, the standard to be applied was the knowledge gathered by a competent and careful private client solicitor, and not the insight of one who had known the testatrix socially from time to time, still less that of a close family member. It was, therefore, sufficient to give written instructions as to execution to the testatrix.

 

What to do

It is suggested that:

(a)  Solicitors should always offer to supervise execution personally, and recommend that this is a sensible course to follow.

(b)  It should be recorded in writing that, if the testator wishes to execute the Will, without supervision, that is at the testator’s own risk. The solicitor should offer to check the executed Will to assess its validity.

(c)  Comprehensive written instructions as to execution should be sent to the testator, if there is to be no personal supervision.

(d)  If the solicitor has reason to believe that the testator would be incapable of following written instructions, the solicitor should insist upon personal supervision, or not act.

Failure to check whether Will properly executed

If the solicitor has not supervised execution, he will be under a duty, if and when the Will is returned to him, to examine it to see whether it appears to be properly executed (Gray v Richards Butler [2000] WTLR 143, at 157D-E).  In Gray the witnesses had not, in fact, witnessed the testatrix’s signature at the same time in her presence. It was submitted that the solicitor should have been put on notice that there was something wrong with the execution of the Will by a number of circumstances, including the fact that one of the witnesses was a neighbour, and the other witness a financial manager with the testator’s bank (Coutts), whose address was in another part of London. However, the Judge regarded those circumstances as minor irregularities which were not such as to put a reasonably competent solicitor upon enquiry that there was any real or substantial possibility that the Will had not been validly executed. The solicitor was entitled to obtain reassurance from the fact that an employee of Coutts was one of the attesting witnesses, since it would be extremely unlikely that such a person would fail to insist on the correct procedures being followed.

In Humblestone v Martin Tolhurst Partnership (a firm) [2004] EWHC 151 the Will was checked by a secretary, who found it to be in order. In fact, the testator had not signed the Will. The Judge considered that the normal fulfilment of a retainer would require the solicitor, when the document was returned for safe keeping, to check that, on its face, and on the facts then known to him, its execution was ostensibly valid. Furthermore, as the normal practice of the solicitor’s firm was to check returned Wills, it had, in any case, assumed a duty of care to check competently.

Whether it is necessary to ask for the return of the Will for checking is not clear. However, it might be a prudent step if the solicitor has not supervised execution.

 

Failure to sever joint tenancy

If the testator’s instructions are to include a gift of the testator’s share in joint property, in which the testator has or may have a beneficial interest passing outside the Will by survivorship on the testator’s death, the solicitor is under a duty to advise the testator to sever the joint tenancy, e.g. by serving a notice of severance on the other joint tenant. The service of such a notice is part of the Will-making process.

In Carr-Glynn v Frearsons [1999] Ch 326 the testatrix owned a property jointly with her nephew. She instructed her solicitor to prepare a Will leaving her share to her niece. The testatrix (who was 81) died before notice of severance was given. The Will was, therefore, ineffective to pass a half share in the property to the niece. The solicitor was aware that the property was in joint names and might be jointly owned beneficially, but advised that the deeds should be obtained so as to check whether there was a beneficial joint tenancy or tenancy in common. The Court of Appeal found that this advice was negligent: the correct advice should have been to sever in any event given that the testatrix was likely to die before her nephew. There was nothing to be gained by waiting, and a real risk that her intentions might be defeated by delay. The Judge had found that if advice to sever immediately had been given, the testatrix would have accepted that advice. The solicitor was held liable to the niece.

This conclusion is, perhaps, somewhat harsh on the solicitor. The advice to check the deeds before severance does not seem so unreasonable as to amount to negligence. Furthermore, the testatrix offered to obtain the deeds herself, and then failed to do so. Should the solicitor have insisted that the testatrix serve an immediate notice of severance, rather than taken up the testatrix’s offer? The conclusion that the testatrix would have accepted advice to sever in any event is also questionable. She had an understandable reluctance to serve a notice of severance on her nephew, and did not, in fact, serve a notice in the following 4 years before her death.

The solicitor’s liability to the niece did not arise out of a failure to procure the execution of a valid Will. The lack of care lay in failing to ensure that an asset fell into the estate by advising that a notice of severance be served promptly. It was, however, held that advice as to the severance of the joint tenancy was integral to the carrying into effect of the testatrix’s intention that her share in the property should pass to the niece under her Will. Service of a notice of severance was part of the Will-making process. The niece was as much an intended beneficiary of the severance as of the gift in the Will.

Given that the negligence lay in failing to ensure that an asset fell into the estate by advising that a notice of severance be served promptly, the relevant loss would appear to have been suffered by the estate. However, the Court of Appeal allowed a claim by the intended specific devisee of the severable half share in a property on the basis that, if the damages were paid to the personal representatives, they would form part of the residuary estate distributable to the residuary beneficiaries, and not to the claimant as the testatrix intended. Presumably, therefore, if the testatrix had intended to sever the joint tenancy, and then to leave her half share to the claimant as part of a residuary gift, the personal representatives would have been the correct claimants.

Failure to secure effective disposition of trust property

 

In the Canadian case of Earl v Wilhelm (2000) 183 DLR (4th) 45 the testator instructed his solicitor to prepare a Will including specific bequests of areas of farmland to various persons. The Will was validly executed. However, the specific bequests of land were ineffective, as the testator had no beneficial interest therein: he held the land on trust for a farming company controlled by himself (as the solicitor knew).  The solicitor was liable to the beneficiaries for loss consequent upon their failure to receive the specific bequests of land. The Court held that, if the testator had been advised that the beneficial ownership of the land was vested in his farming company, he would have made arrangements to ensure that effect was given to his wishes.

 

Notably, it was not a defence that the lawyer was acting on the testator’s instructions in including the specific bequests of the farmland in the Will. The Court commented that it was not a sufficient discharge of a solicitor’s duty to a testator in circumstances such as these to simply enquire of him what he wishes and then to record and thereafter prepare the Will without anything further. That would be to relegate a solicitor and his obligations to that of a “parts counterman or order-taker”. The public is entitled to expect more from the legal profession.

 

Certainly, if the solicitor knows that the testator does not have beneficial ownership of an asset of which the testator wishes to dispose, he must so advise; similarly if the testator only has a limited interest (such as a life interest). There is probably also a duty to advise that suitable enquiries be made to ascertain the true position, if the solicitor has notice of any facts which might indicate that the testator is not competent to dispose of the asset.

Failure to include provision in accordance with testator’s instructions

 

Duty and breach

If a testator instructs a solicitor that he wishes to make a testamentary gift of his interest in an asset to X, and the Will fails to carry out the testator’s intention in that regard, the solicitor may be liable in damages to X.

 

Convincing evidence

However, the burden is on the disappointed beneficiary to prove, by “convincing evidence” (Walker v Medlicott & Son [1999] 1 WLR 727, at 731H, 738A) that the testator instructed the solicitor to confer the relevant benefit on the beneficiary, and that the solicitor negligently failed to carry out those instructions.

This may provide real difficulty as the decision in Walker v Medlicott & Son illustrates. In Walker there was ample evidence that the testatrix had informed the claimant and 9 other persons, that she had left her house to the claimant. She had even made a note, prior to visiting the solicitor, as a reminder to leave her house to the claimant. However, the testatrix’s Will did not include a specific devise of the house to the claimant, only a less favourable gift of a 1/6 share of her residuary estate including the house.

The issue was whether the claimant had proven, by convincing evidence, that instructions to include a gift of the house to the claimant had been given to the solicitor. The difficulty was that the testatrix was dead; the claimant was not present when instructions were given; and the solicitor had no specific recollection of the meeting at which instructions were given. The solicitor was found to be honest, had made a detailed attendance note which corresponded with the contents of the Will, and had given reliable evidence as to his usual practice in preparing a Will. Based on that practice and the documentary evidence, the solicitor was convinced that the testatrix must have changed her mind and decided not to give her house to the claimant. The Judge was entitled to attach weight to the solicitor’s evidence. It was also possible that there had been a genuine misunderstanding between the testatrix and the solicitor. Therefore, the allegation of negligence was not proved.

In Martin v Triggs Turner Bartons [2010] PNLR 3 the claimant succeeded in overcoming the evidential hurdle of proving convincingly that a power of advancement contained in her husband’s Will trust had not been drafted in accordance with her husband’s instructions. The claimant had attended the meeting at which the instructions were given. There was a conflict between her evidence and that of the solicitor. The Judge preferred the claimant’s evidence. The solicitor had not kept a proper attendance note.

 

Mitigation by rectification

There was a second ground on which the claimant failed in Walker v Medlicott & Son [1999] 1 WLR 727. The claimant had failed to mitigate by bringing rectification proceedings.

Pursuant to s. 20 of the Administration of Justice Act 1982 if a court is satisfied that a Will is so expressed that it fails to carry out the testator’s intentions, in consequence (a) of a clerical error or (b) of a failure to understand his instructions, it may order that the Will shall be rectified so as to carry out his intentions.

An application for an order for rectification shall not, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation with respect to the estate of the deceased is first taken out (s. 20(2) AJA 1982).

In Walker v Medlicott the Court of Appeal found that, if, as the claimant asserted, the Will failed to carry out the testatrix’s intentions, that must have been in consequence either of a clerical error of the solicitor in recording her instructions in his attendance note, leading to a corresponding error in the Will as drafted; alternatively, of a failure on his part to understand her instructions. On either basis the Will could have been rectified.

The key point was that the evidence in support of the negligence claim would be the same as that in support of the rectification claim. Indeed, rectification was easier to establish than negligence (on the basis that there may have been a non-negligent, but rectifiable, misunderstanding by the solicitor of the testatrix’s intentions). The claimant should have applied for rectification first, exhausting that remedy, and only sued the solicitor as a last resort.

If successful, the claimant would have inherited the house; any damages for negligence would have been confined to the costs incurred in putting right the terms of the Will (there being no bar to a White v Jones claim that the claimant also has a remedy in rectification). If, on the other hand, the application for rectification failed, so would the negligence claim fail.

Walker v Medlicott was distinguished in Horsfall v Haywards [1999] 1 FLR 1182. In Horsfall the claimant’s uncle instructed the defendant solicitors to prepare a Will leaving his house to X for life, with the remainder to the claimants. Due to the solicitor’s admitted negligence, the Will left the house to X absolutely. By the time the mistake came to light, X had sold the house and emigrated to Canada with the sale proceeds. The court was prepared to proceed on the basis that a rectification claim would be likely to succeed.

However, the question was whether the claimant had failed to take reasonable steps, in not bringing rectification proceedings and in not seeking to negotiate with X. The claimant had acted reasonably in not instituting rectification proceedings. Such proceedings would have had to have been commenced in Canada; they would have been resisted; and the costs would probably have extinguished the entirety of the fund. The rectification proceedings in themselves would not have resulted in any material recovery of the funds (without further action to recover the sale proceeds). In any event, by the time that the claimant became aware of the mistake, the capital of that trust fund had been made available to X in Canada, and the 6-month time limit for rectification proceedings had expired. The claimant had not taken proceedings within the jurisdiction, within time, as the defendant solicitor, who acted in the administration of the estate, had not advised as to the possibility of rectifying the Will.

Advice where potential claim to rectify

Generally, where the claim is that the Will does not express the testator’s intentions due to a clerical error, or a failure to understand the testator’s instructions, the claimant should first commence rectification proceedings. If successful, a claim can subsequently be made in negligence against the solicitor to recover the costs of the action. It may also be possible to claim damages equal to the difference between the value of benefits under the Will, following the reasonable compromise of a rectification claim, and the value of such benefits if there had been no negligence (see the special facts of Martin v Triggs Turner Bartons [2010] PNLR 3).

Alternatively, negligence and rectification claims could be brought in the same proceedings, with the negligence claim being stayed pending the conclusion of the rectification claim. In any event, the negligence claim should not be commenced in advance of the rectification proceedings (Re Grattan [2001] WTLR 1305, at 1311B).

However, negligence proceedings may be commenced if, for any reason, it is unreasonable to expect the claimant first to seek rectification, e.g. because of difficulties of enforcement.

Failure to ascertain testator’s intentions

Duty to ascertain testator’s instructions on relevant matter

 

Failure to ascertain testator’s instructions and/or give relevant advice

 

The solicitor’s negligence may consist in a failure to take the testator’s instructions on a material matters, and/or to advise on such matters.

Once the claimant establishes that a solicitor was retained to prepare a Will, the burden must shift to the solicitor to show, if he can, that his responsibility for the preparation of the Will did not extend to advising the client on some aspect of the Will relevant to the claim (Gibbons v Nelsons [1999] Ch 326).

The duty may extend to taking instructions and/or advising as to such matters as:

(a)  the meaning and effect of the provisions in the Will (see Gray v Buss Merton [1999] PNLR 882 where a solicitor was held to be under a duty to clarify his instructions);

(b)  whether the testator wishes to make provision for any default beneficiaries in the event that a primary beneficiary predeceases the testator;

(c)  the tax effect of the Will provisions, e.g. whether a gift should be free or subject to IHT

(d)  that the Will is or may be ineffective to dispose of certain property, such as pension interests, immoveable foreign property, joint property, or property held upon trust;

(e)  that a gift will “adeem” if the gifted property is disposed of before death;

(f)    that there could be a challenge to the Will, e.g. a claim under The Inheritance (Provision for Family and Dependants) Act 1975 and that it may, therefore, be advisable to draw up a letter explaining the testator’s reasons.

However, there can be no liability for failure to advise a testator as to the possibility of including a gift in favour of X, where the solicitor does not know that the testator wishes to benefit X (see Gibbons v Nelsons [1999] Ch 326).

Even if there is evidence that the testator might have wanted to benefit X, the solicitor will not be liable in the absence of convincing evidence that he would have included a provision for X’s benefit, if properly advised.

In Littlewood v Wilkinson Woodward [2009] PNLR 29 the testatrix gave instructions that she wished to make a gift of the sale proceeds of her house to her granddaughter on attaining the age of 21. The solicitor was concerned about the testatrix’s mental capacity, in particular that she might have been affected by alcohol when giving her instructions. The solicitor decided to meet with the testatrix again and to make a fresh start in taking her instructions. The testatrix thereupon gave new instructions which did not include a specific gift of the testatrix’s house to her granddaughter. There was no discussion relating to the testatrix’s previous instructions. The granddaughter claimed that the solicitors had a duty to clarify the testatrix’s intentions with relation to her house. The Judge accepted that it might have been better to have made specific reference to the testatrix’s previous instructions. However, having regard to the fact that the solicitor had taken reasonable care to obtain comprehensive instructions at the subsequent meetings, their failure to query the testatrix’s change of testamentary intention did not amount to negligence.

In any event, the Judge was not satisfied that, if the matter had been raised, the testatrix would have stated that she wished to leave her house to her granddaughter.

 

Duty to give tax advice in connection with the Will

There is no doubt a duty to advise as to the tax implications of the Will which the solicitor is asked to prepare. In Cancer Research Campaign v Ernest Brown & Co [1997] STC 1425 Harman J said that he did not doubt that a solicitor, in considering a Will he is asked to prepare, must consider what inheritance tax complications will be caused by the bequests in respect of which he had been given instructions.

If the solicitor wishes to exclude liability for tax advice, clear, informed and written consent of the testator will be required (see Hurlingham Estates Ltd v Wilde & Partners [1997] 1 Lloyd’s Rep 525, at 529). It may be sensible to include a term in the retainer that the solicitor is not advising on VAT, corporation tax, stamp duty, or SDLT, and that specialist advice would need to be taken on these tax liabilities.

In practice, the level of consideration of tax issues may not be that onerous. Consideration should no doubt be given to the issue of whether to include a nil rate band legacy in favour of chargeable beneficiaries, or whether to rely upon the transferable nil rate band. The extent of the duty will, however, vary according to the size and nature of the estate, the age of the testator, the identity of the proposed beneficiaries, and the complexity of the Will.

The necessity to give tax advice may have an impact upon the assessment of a reasonable period of delay in preparing the Will.

 

Failure to give post-death planning advice to testator

The existence of a duty to give post-death planning advice in respect of the estate of someone other than the testator was denied in Cancer Research v Ernest Brown & Co [1997] STC 1425. A brother and sister died within 18 months of each other. The majority of the brother’s estate passed to the sister, and the majority of her estate to 7 charities. A legal executive in the defendant firm acted in the administration of the brother’s estate, and prepared the sister’s Will following the brother’s death. It would have been beneficial for IHT purposes for the sister (or after her death, her personal representatives) to have entered into a deed of variation within 2 years of the brother’s death, in compliance with s. 142 IHTA 1984, redirecting the brother’s estate directly to the charities. There would then only have been one transfer of value, which would have exempt. However, no deed of variation was executed within the 2-year period.

The charities claimed that the solicitors were under a duty to the sister to advise her to execute a deed of variation of her brother’s estate redirecting his estate directly to the charities, saving IHT on the brother’s death. Harman J held that the retainer was to prepare the sister’s Will. This was properly carried out. There was no duty to inform an intended testator, who comes in to instruct a solicitor about his or her Will, about tax avoidance schemes in connection with some quite other estate. The duty was limited to carrying out the testator’s instructions completely and promptly. Harman J also rejected the claim on the grounds that there was no evidence that the testatrix would have acted on advice to enter into a deed of variation.

The decision was influenced by the Judge’s perception that the legal executive could not be expected to give tax-avoidance advice. The Judge commented that tax avoidance is a matter which occurs naturally and at once to any regular practitioner in Chancery matters, and to most – although nowadays not all – members of chambers in Lincoln’s Inn. That did not mean, however, that it is an idea that occurs naturally, or that it should be attributed to ordinary people in the ordinary way of business, or to a legal executive in a small firm of high street solicitors.

It must, however, be debatable whether: (a) a firm of solicitors, holding itself out as competent to prepare Wills and administer estates, could not reasonably be expected to give advice as to saving IHT by means of a deed of variation; and (b) it would be appropriate in all cases to apply the standard of expertise to be expected of a legal executive in a small firm of high street solicitors. A firm of solicitors, particularly a larger firm with a private client department, would not be safe to conclude that it could be under no liability in similar circumstances for failure to advise as to tax savings to be achieved by deeds of variation.