Will – Bequest of share in joint tenancy – Solicitor failing to advise testatrix of need for severance of joint tenancy – Whether solicitor having duty to ensure that asset fell into estate – Whether duty of care owed by solicitor to client in preparation of will extending to beneficiary
By clause 2(b) of her will executed on February 9 1989, the testatrix gave all her share or interest in Homelands, Burley, Hampshire (the property), to her niece, the plaintiff. The will was prepared by the defendant solicitors and at the time of its execution the property was held by the testatrix and the plaintiff’s brother as beneficial joint tenants. The testatrix died on August 11 1993 without having severed the joint tenancy. The property therefore vested in the surviving joint tenant; the gift in clause 2(b) could not take effect and the plaintiff’s expectation as beneficiary was disappointed. The plaintiff brought proceedings against the defendants, whose responsibility she contended it was to ensure that she received the benefit which the testatrix intended that she should receive. The judge held that where a solicitor’s breach of his duty of care to a testator in preparing her will resulted in a loss to the estate, the solicitor owed no duty of care to an intended beneficiary under the will whose gift was thereby rendered ineffective. He held also that even if such a duty had been owed, the plaintiff had not established, on the facts before him, that there had been a breach of that duty. He found as a fact, not challenged by the defendants, that: (1) the testatrix had intended the plaintiff to receive a one half-share in the property; (2) she retained that intention until her death; and (3) if she had been advised that it was necessary to serve a notice of severance, she would have done so. The judge found that the solicitors had dealt with the matter in a way which was “entirely reasonable and proper” and dismissed the action. The plaintiff appealed.
Held The appeal was allowed.
1. A competent solicitor, acting reasonably, would have advised the testatrix that, in order to be sure that her testamentary wishes should have effect, she should serve a notice of severance in conjunction with the execution of the will. In failing to advise that such a notice ought to be served immediately, the defendants fell below the standard of care to be expected.
2. The remedy extended to a disappointed beneficiary in White v Jones [1995] 2 AC 207 was not confined to those cases, of which White v Jones was an example, in which the estate itself had no remedy, so that, absent a remedy at the suit of the beneficiary, there was no remedy at all. It could be further extended to cases in which the estate did have a remedy but where the estate’s remedy would be of no advantage to the disappointed beneficiary.
3. As the judge observed, it was unacceptable that solicitors should be at risk of two separate claims for identical loss at the suit both of the personal representatives and a beneficiary, when recovery by one would not bar recovery by the other. However, it was equally unacceptable if the law required that, because of the solicitors’ negligence, the loss which the personal representatives were able to recover on behalf of the estate passed to someone who was not the beneficiary intended by the testatrix, leaving the intended beneficiary without recompense.
3. It was consistent with the approach of the majority in White v Jones(supra) to recognise that the appellant was a person in relation to whom the assumption of liability by the solicitors towards their client, the testatrix, ought to be extended. Prima facie the appellant would receive no benefit from a successful claim by the estate against the solicitors. The proceeds would form part of the residuary estate in which she had no beneficial interest: see per Lord Goff in White v Jones [supra], at p262. Here there was a lacuna to be filled and the court was entitled to fashion a remedy to meet the need.
4. Therefore, solicitors who, in the course of carrying out a testator’s testamentary instructions, failed to take care to ensure that the relevant property formed part of the estate, were liable to compensate the specific legatee for the loss suffered as a result of the breach of duty owed to him and were liable to compensate the estate for the loss (if any) suffered by the other persons interested in the estate for breach of the duty owed to the testator.
Geoffrey Zelin (instructed by Wannop & Fox, of Chichester) appeared for the appellant; Guy Mansfield and Mark Hubbard (instructed by Browne Jacobson, of Nottingham) appeared for the respondents.
Carolyn Toulmin, barrister
