Professional negligence – Solicitor – Damages – Claimant executors of deceased’s estate claiming damages against defendant solicitors alleging negligent failure properly to advise deceased in preparation of will in connection with severance of joint tenancies – Whether defendant acting in breach of duty – Claim dismissed
The claimant executors of a deceased’s estate brought an action for damages against the defendant firm of solicitors alleging that the deceased had retained the defendant to prepare a new will for her, and that, in the course of a meeting on 21 September 2011 and subsequently, the defendant failed, negligently and in breach of retainer, properly to advise the deceased as to, and in connection with, the severance of the joint tenancies of two valuable properties that the deceased owned with her husband known as 84, Abingdon Road, Kensington, (“the London House”), and Broadwater House, Sherborne, Gloucestershire (“Broadwater House”).
The alleged shortcomings in advice were said to have caused the deceased not to sever the joint tenancies, with the consequence that upon her death the properties passed by survivorship to her husband, which was contrary to her wishes, particularly in that under the terms of the husband’s will, his ultimate beneficiary was the National Trust, which organisation the deceased most definitely did not wish to benefit. The result, it was argued, was that deceased’s estate had suffered the loss of her half-share interests in respect of both properties. The defendant denied that it acted in breach of duty, and maintained that the deceased had been unwilling to sever the joint tenancies.
Held: The claim was dismissed.
(1) The defendant owed duties to explain the effect of the joint tenancies of the properties, and the effect that non-severance of those tenancies would have in terms of the distribution of assets that would otherwise have formed part of the deceased’s estate following her death. Having raised the possibility of post-death severance, the defendant was obliged to ascertain the deceased’s instructions as to whether she wished the pursuit of such an objective to be included in her letter of wishes, and also to give to her a competent evaluation of the prospects for achieving such objective. However, ordinarily the duty assumed by a solicitor advising as to the making of a will was wider. It was a duty to take care that effect was given to his or her testamentary intentions. That was the context in which the duty to take care to ensure that the relevant property formed part of the estate arose. The duty in relation to the relevant property was a duty to take care to ensure that that property formed part of the testator’s estate so that it could pass to the intended beneficiaries on his death. It was not in contemplation, in a case of this nature, that the testator would dispose of the property in his lifetime. The loss from which the testator and his estate were to be saved was the loss which those interested in the estate would suffer if effect was not given to the testator’s testamentary intentions: Carr-Glynn v Frearsons [1998] PLSCS 232; [1999] Ch 326 applied.
(2) Absent instructions to the contrary, the duty upon the defendant, which was owed to the deceased, was to take care that effect was given to her testamentary intentions, which would extend to her wishes as to how she would have wanted her assets to have devolved in certain readily foreseeable eventualities. Thus, whilst she made it clear that she did not wish the National Trust to benefit from any of her assets, which might suggest that severance of a joint tenancy was sensible, proper advice as to whether that course would give effect to testamentary intentions would have to take into account contra-indications, which might include, in the context of this case, potential loss to her estate in respect of Broadwater House, and reaffirming considerations, such as the fact that severance would not, having regard to the terms of her husband’s will, cause her to lose the prospect of acquiring his half share in the London House despite severance.
(3) The important qualification that affected the scope of the duty in this case, was that the deceased, once she got into the discussion of various possibilities including severance, non-severance, post-death severance, advantages and disadvantages of various courses, gave very clear instructions that apart from making her will, and arranging for a letter of wishes including an instruction as to consideration of post-death severance, wanted to leave other things over for discussion at another meeting. Delay was a genuine preference. In particular, at that stage, she did not wish to sever the joint tenancies in case her husband needed the money. The defendant was confronted with an intelligent client, who had been offered the opportunity of a fuller discussion when the full picture could be discussed. She was clear about what she wanted to do, and the limits of it. Articulation of the defendant’s reasons for his views, which had not been fully developed or researched, to the knowledge of the deceased, would have had no effect on her instructions given at the time. There was no duty to ensure a particular outcome. The deceased knew who her intended beneficiaries were, and that unless there was severance, they might not have the benefit other interests in the properties.
(4) In this case it was for the claimants to prove causation on a balance of probabilities; this was not a “loss of a chance” case: see Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602. What had to be proved to establish a causal link between the negligence of the defendant and the loss sustained by the claimants depended in the first instance on whether the negligence consisted of some positive act or misfeasance, or an omission or non-feasance. In the former case, the question of causation was one of historical fact. Once established on balance of probability, that fact was taken as true and the plaintiff recovered his damage in full. To prove causation, the claimant had to prove that if the deceased had been properly advised, she would have acted differently from the manner in which she did act, and that she would have severed the joint tenancies. Had the court been satisfied that the defendant had breached its duties to the deceased it would have rejected their claim, because it was not satisfied that the deceased would have acted differently.
Penelope Reed QC (instructed by Charles Russell Speechlys LLP) appeared for the claimants; Patrick Lawrence QC (instructed by BLM, of Manchester) for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Shah and another v Forsters LLP