NOTE: This article was published in February 2012 and reflects the law as it stands on the date of publication and not at any later date.
TRUSTS AND PROBATE CLAIM CONCERNING SOLICITORS
A solicitor may be involved in the administration of a trust or estate:
(a) in the capacity of a professional trustee or personal representative; and/or
(b) as a solicitor advising the trustees or personal representatives.
In his capacity as trustee or personal representative, the solicitor will owe equitable duties to the beneficiaries of the estate or trust. He may be liable for a breach of trust, or devastavit.
In his capacity as a solicitor advising the trustees/ personal representatives, the solicitor will owe common law duties of care in contract and tort to the trustees/personal representatives and, perhaps, also directly to the beneficiaries.
Some breaches by trustees or personal representatives can be committed entirely innocently or inadvertently, e.g. where the trustees or personal representatives invest in assets in which they have no power to invest. In such a case, the trustees’ intentions and motives are irrelevant; it is also irrelevant whether they have been negligent.
The trustees/personal representatives may, however, have a claim in negligence against a solicitor who carelessly failed to advise them not to make the wrongful investment.
Trustees are also under a duty, under the Trustee Act 2000, and in equity, to exercise reasonable care and skill in their management of trust property. Clearly, they can only be liable, in this respect, if they have been “negligent”. If a solicitor advising them is responsible for their negligence, they may have a claim against the solicitor.Read More »