Negligent Will Claims - the legal background

1.Historic development of the Law of Negligence in relation to Will Preparation

The law of negligence is constantly evolving and nowhere is the pace of change faster than in the area of negligent Will preparation.

Until comparatively recently, lawyers preparing a Will have been exempt from the consequences of their mistakes and could not be sued for losses arising from a negligently drafted Will.

This historical position had been established in the Victorian case of Robertson v Fleming. Even as late as 1969 a leading text had this to say on negligence in relation to Will preparation:-

Mistakes in the preparation of a Will give no cause of action to the intended beneficiary since the solicitor owes no duty to anyone other than his client, the testator.”

On the face of it, this position seemed unfair and unjust, but it was founded on solid legal principles. Underlying the approach was the concept of Privity of Contract. In simple terms, the law said that as the contract for the service of preparing the Will was made between the client and the solicitor, it was only the client who had the right to sue. So, when the client died and the negligent error came to light, the client was no longer in the position to pursue a claim and his estate (as opposed to his beneficiaries) would have suffered no loss. As a result of this, any potential negligence action died with the client.

Whist this position may have satisfied the academic purists, most people regarded it as highly unsatisfactory. Beneficiaries were missing out and the negligent lawyers were getting away scot free.

Donoghue v Stevenson, perhaps the most famous legal case of them all, had given birth to the modern tort of negligence in 1932. By the end of the 20th century the law of negligence had come of age, its principles extending far and wide.

Until comparatively recently, lawyers preparing a Will have been exempt from the consequences of their mistakes and could not be sued”

The original notion of “negligence” was a very simple one. The House of Lords in the Donoghue v Stevenson case talked in terms of solicitors owing a duty of care to those “who are so closely and directly affected by [our] act that [we] ought reasonably to have them in contemplation”.

However, it wasn’t until the 1970s that Judges began to acknowledge that beneficiaries might be “so closely and directly affected” by the acts of a solicitor preparing a Will that they are owed a duty of care.

The breakthrough came in 1979 with the landmark case of Ross v Caunters. The year which witnessed the winter of discontent and the rise to power of Margaret Thatcher, also saw the Courts finally agree it was unfair that Privity of Contract should prevent an intended beneficiary from taking legal action to recover losses they had suffered as a result of a Will being negligently prepared.

The Judge in Ross v Caunters concluded that it was only right and proper that a solicitor who prepares a will should owe a duty of care to intended beneficiaries to ensure that the testator’s instructions were properly implemented in a valid Will. If a solicitor failed to do so the beneficiaries should be entitled to seek recovery of their losses through the tort of negligence, even though there had been no direct relationship between the beneficiaries and the solicitor.

The year which witnessed the winter of discontent and the rise to power of Margaret Thatcher, also saw the Courts finally agree it was unfair that Privity of Contract should prevent an intended beneficiary from taking legal action to recover losses they had suffered as a result of a Will being negligently prepared.”

This was a radical departure from the historical position and for some time many legal commentators doubted whether the Court’s decision was actually good law. We were to wait another 16 years before the legal position was finally clarified in the leading House of Lords Judgement, White v Jones, whose principles now underpin the law in the area of negligent Will preparation.

2.The current legal position relating to Negligently Prepared Wills

It was not until 1995 and the decision in White v Jones that the legal position on negligently drafted wills was finally clarified. The House of Lords considered whether a disappointed beneficiary who suffered loss as a result of a negligently drafted will could look to the solicitor who prepared it for compensation. The answer they gave was a resounding, “yes”.

In truth, the judiciary was under a great deal of public pressure to put an end to the legal loopholes that prevented disappointed beneficiaries recovering their losses. The historical position, (based on the principle of Privity of Contract) was no longer in tune with the spirit of consumer law. If the Lords had not upheld the decision then Parliament would probably have stepped in with a specific piece of consumer legislation to plug the gap.

The House of Lords considered whether a disappointed beneficiary who suffered loss as a result of a negligently drafted will could look to the solicitor who prepared it for compensation. The answer they gave was a resounding ‘Yes’ ”

Looking at the House of Lords judgment in White v Jones a number of factors emerge:

  • For a valid professional negligence claim to be made the person making the will, the testator, must have died. The Judges took the view that until death occurs the testator could change their mind about the terms of the Will, including any legacies. Alternatively, if it is a case of delay the solicitor can simply complete the work he has contracted to undertake. Either way no loss arises.

  • The House of Lords decision only related to negligently prepared Wills. However, many in the legal profession believe it has wider implications.

  • The Judges endorsed a “pragmatic”, case-by-case approach to professional negligence claims relating to wills.

The importance of White v Jones cannot be overstated. It builds on an unequivocal endorsement of the principles first established in Ross v Caunters. As Lord Nolan said at the time:-

“The moral that solicitors, when preparing a Will, owe a duty to intended legatees as well as to the testator must by now have become familiar to them and to their insurers”

It seems reasonable to surmise that the evolutionary process in this area of law has not yet reached its pinnacle. Further developments are likely as cases are decided by the judiciary and we can expect the basic principles enshrined in the White v Jones decision to be extended beyond solicitors negligence in the preparation of a Will or the duty owed to the beneficiaries of such a Will.

In short, watch this space!