Appellant solicitor failing to advise respondent executrix — Beneficiaries under will suffering loss — Executrix bringing action — Whether claim should be struck out on ground that estate suffering no loss — Appeal dismissed
The respondent was the executrix of a will. In 1996, she instructed the appellant solicitor to act for her in the administration of the estate. It failed to progress the administration and, in 2001, the respondent terminated its retainer. She instructed another firm of solicitors, was granted probate, and distributed the estate in accordance with the terms of the will.
The residue of the estate included two properties that remained unlet between the period of the deceased’s death and the distribution of the estate, thus causing loss to the third party beneficiary. The respondent commenced proceedings against the appellant on the basis that its failure to advise her led to the delay that occasioned that loss.
The appellant contended that the respondent had no claim against it, as the loss was suffered by the beneficiary and not the estate. The judge accepted the argument but held that the respondent’s claim might succeed on the basis that she should be able to obtain an indemnity from the appellant in respect of any such liability she might have to the beneficiaries. The appellants appealed.
Held: The appeal was dismissed.
A person who is appointed executor under a will cannot be held liable for any losses which accrue to an estate or the beneficiaries under the will as a result of a prolonged delay before the will is proved, see In Re Stevens [1898] 1 Ch 162. However, it would be wrong for the solicitor to escape any liability for damages on a case such as this merely because it could identify a dichotomy between the person who could claim against it for a breach of duty, that is, the executrix, and the person who could be said to have suffered the damage, namely, the beneficiary. This principle, identified as “the impulse to do practical justice”, is supported by White v Jones [1995] 2 AC 207, in which it was held that a solicitor who had been negligent in drafting a will could be sued by the disappointed beneficiary since he would otherwise escape liability as his client, the deceased, had suffered no loss.
In any event, given that any damages would ultimately accrue to the beneficiary irrespective of who had the right to sue, the question of who had brought the action, be that the beneficiary or the executrix, was of little significance as long as there was no element of double recovery. Accordingly, the present action was properly constituted and there was a cause of action vested in the respondent in relation to the instant disputed claim.
Elspeth Talbot Rice (instructed by Withers LLP) appeared for the appellant; Giles Harrap (instructed by Blake Lapthorn Linnell) appeared for the respondent.
Vivienne Lane, barrister
