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GAZETTE
MEDIWH
m
AR
ch
1995
St ark Warning for
Sol ici tors Dr a f t i ng
Wi l ls
Reading The Will - Thomas Rowlandson,
early Nineteenth Century, Boston Public
Library.
A solicitor who fails to draft a will
promptly despite having instructions
to do so is liable to an intended
beneficiary. The House of Lords, by a
majority of three to two, so held in the
recent landmark decision of
White v Jones
delivered on February
16, 1995 and now reported at [1995]
1 All ER 691.
The principles involve in
White v
Jones
perplexed many legal minds.
The principles were seen as so
important that it is understood that the
Law Society of England and Wales
agreed to pay the legal costs of both
sides. It took the House of Lords
eleven months to deliver judgment.
The
All England Law Reports
reported
the case on March 1, 1995 - two
weeks after the delivery of the ruling.
The case has been described as the
most important solicitors' negligence
case in many years.
The principles involved in the
negligence case against the
solicitors perplexed many
distinguished legal minds. It
took the House of Lords eleven
months to deliver judgment.
Solicitors must draw up wills
with the minimum of delay.
On March 4, 1986, 78 year old
Arthur
Barratt,
the testator, who had
quarrelled with the plaintiffs, his two
daughters, executed a will cutting them
out of his estate. Subsequently, in June
of that year, Mr. Barratt was reconciled
with the plaintiffs and sent a letter to
his solicitors giving instructions that a
new will be prepared to include gifts of
£9,000 each to his daughters. The
solicitors received the letter on July 17
but nothing was done to give effect to
the instructions for a month. On
August 16,
Mr. John Jones,
a legal
executive, employed by the firm of
solicitors wrote an internal
104
memorandum to a member of the
firm's probate department requesting
that a will or codicil be drawn up "as
soon as possible". The following day,
Mr. Jones went on holiday and on his
return to work a fortnight later he made
arrangements to visit the testator on
September 17. However, Mr. Barratt,
the testator, died on September 14,
after an accident on holiday before the
new will was drawn up.
In due course, the first will, executed
in March 1986, was admitted to
probate. So there were two
documents; the will and the letter of
instructions for a new will. The letter
was not witnessed as required by the
appropriate legislation so it could not
itself stand and take effect as a will.
The family were unable to agree on
how the estate should be divided. The
daughters took the view that Mr.
Jones's inexcusable delay was the
cause of their not having received the
£18,000 from their father's estate.
Had the legal executive done what he
should have done, the March 1986
will would have been revoked and
replaced with a new will benefiting
them. So they brought an action
against the solicitors for damages for
negligence.
Duty of Care to Whom?
The judge at first instance held the
solicitors owed no duty of care to the
plaintiffs and dismissed the action.
The two daughters (the plaintiffs)
appealed to the Court of Appeal which
allowed the appeal on the grounds that
a solicitor who was instructed to
prepare a will for a client and, in
breach of his professional duty, failed
to do so, was liable in damages to a
disappointed prospective beneficiary
if the client died before the will had
been prepared or executed. The Court
of Appeal held the plaintiffs were
each entitled to damages of £9,000.
The solicitors appealed to the House
of Lords contending that the general
rule was that a solicitor acting on
behalf of a client owed a duty of care
only to his client under the solicitor-
client retainer, which was contractual
in nature, that since the plaintiffs'
claim was for purely financial loss any
claim could only lie in contract and
not in tort and there was no contract
between the solicitor and disappointed
beneficiary and that no claim lay in
tort for damages in respect of a mere
loss of an expectation which fell
exclusively within the zone of
contractual liability.
Special Relationship
The majority of the House of Lords
(Lords Goff, Brown-Wilkinson and
Nolan) held by accepting instructions
to make a will, a solicitor came into a
special relationship with those whom
a testator intended to benefit under the
will. In consequence, the law imposed
on the solicitor a duty to intended