The Gazette 1995

MEDIWH m AR ch 1995

GAZETTE

St ark Warning for Sol ici tors Dr a f t i ng Wi l ls 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

Reading The Will - Thomas Rowlandson,

early Nineteenth Century, Boston Public

Library.

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