Law Report: Solicitor liable for failure to prepare will: White and another v Jones and another - Court of Appeal (Sir Donald Nicholls, Vice-Chancellor, Lord Justice Farquharson and Lord Justice Steyn), 3 March 1993

Solicitors who through inexcusable delay failed to draw up a will before the testator's death were liable in negligence to the disappointed prospective beneficiaries.

The Court of Appeal allowed an appeal by the plaintiffs, Carol White and Pauline Heath, from Mr Justice Turner's dismissal of their action for damages against the defendants, Philip Baker King & Co, Birmingham, a firm of solicitors and John Jones, a managing clerk.

Following a family row, the testator gave instructions to the defendant solicitors to draw up a will. The will was executed within three weeks on 4 March 1986. The plaintiffs, the testator's two daughters, were cut out of the estate which was valued at some pounds 30,000.

However, by mid-June 1986 the testator and his daughters were reconciled. On 17 July the solicitors received a letter from the testator giving instructions for a new will: each daughter was to have pounds 9,000 and his five grandchildren pounds 1,600 each. The letter stated that he had destroyed the March will. The testator died on 14 September before the new will was executed.

The daughters brought an action in negligence against the solicitors on the basis that the inexcusable delay in drawing up the will was the cause of their not receiving pounds 18,000 from their father's estate. Mr Justice Turner declined to apply Ross v Caunters (1980) Ch 297, where solicitors were held liable to a beneficiary for not warning the testator about formal witnessing requirements, to a failure to draw up a will. He decided that the solicitors did not owe any legal duty to the sisters but if they did owe a duty, they were in breach

of it.

John Mitting QC and James Quirke (Rosenbergs, Birmingham) for the sisters; Duncan Matheson QC and Teresa Peacocke (Pinsent & Co, Birmingham) for the

solicitors.

SIR DONALD NICHOLLS V-C said that the case concerned the consequences in law of a solicitor's failure to prepare a will. This was not a case where a prospective beneficiary could show reliance on a solicitor's advice. Short of reliance, awareness by an intended beneficiary of what the testator was doing could not itself make the solicitor liable to the beneficiary if otherwise he would not be liable.

The decision in Robertson v Fleming (1861) 4 Macq 167 that a solicitor was not liable to an intended beneficiary did not throw any light on the question of liability by an application of principles established by 20th-century

decisions, such as Donoghue v Stevenson (1932), which had subsequently become part of the bedrock of the English law of negligence.

The House of Lords did not doubt the correctness of Ross v Caunters in either Caparo Industries plc v Dickman (1990) 2 AC 605 or Murphy v Brentwood DC (1991) AC 398.

If there was no liability the result was striking: the only person who had a valid claim against the solicitor had suffered no loss, and the only person who had suffered loss had no valid claim. The executors could sue the solicitor for damages for professional negligence but they could recover only nominal damages because the estate had suffered no loss. The intended beneficiary suffered a loss, but he had no right of recourse against the solicitor for his professional negligence which caused his loss. It would be a sorry reflection on English law if that was the position today.

A solicitor must forsee that if he failed to prepare a will as instructed by his client and arrange for it to be duly executed, the disappointed beneficiaries would suffer financial loss. Although the importance of reliance by the plaintiff on the defendant was emphasised in pure economic loss cases, reliance was not a prerequisite to the existence of liability.

In general, and leaving reliance cases on one side, a solicitor owed a professional duty of care to his client and no one else. He owed a duty to exercise the standard of skill and care appropriate to his status as a solicitor.

If the court held a solicitor liable to an intended beneficiary, what the court was doing was fashioning an effective remedy for the solicitor's breach of his professional duty to his client. A coherent system of law demanded there should be an effective remedy against the solicitor. The law of contract was unable to provide the remedy.

Instructions to prepare a will were different from other instructions to a solicitor. The failure to carry them out properly resulted in the client's purpose being thwarted but left the client's estate with no effective remedy. There was good reason why the solicitor should be liable for a third party in this very special situation. Otherwise there was no sanction in respect of the solicitor's breach in his professional duty. Thus there was a special relationship between the solicitor and intended beneficiary which should attract liability if the solicitor was negligent. The resources of the law must be sufficient to fill what otherwise would be a serious lacuna.

The duty on the solicitors to prospective beneficiaries was to exercise professional skill and care in carrying out the testator's instructions. When a first will had been duly prepared and executed the solicitor had fully discharged his duties and obligations to the beneficiaries under that will. He owed no obligation to them which would inhibit him from subsequently accepting and carrying out instructions from his client to draw up a new will with different legacies. There was no scope for conflicts of interest.

Ross v Caunters was still good law. The appeal would be allowed and judgment entered for each plaintiff in the sum of pounds 9,000.

Lord Justice Farquharson and Lord Justice Steyn concurred.

Ying Hui Tan, Barrister