On 16 February the House of Lords decided by a 3:2 majority in White v Jones [1994] The Times, 17 February that a lawyer who negligently failed to carry out a client's instructions to prepare a new will was liable in damages to the intended beneficiaries.Although the facts were straightforward they gave rise to very difficult legal issues.

Briefly, the testator, following resolution of a family rift, requested the firm Philip Baker King & Co to amend the terms of his original will.

He also let the intended beneficiaries know of this.

However, a legal executive at that firm delayed preparing the will for so long that the testator died before signing the new will.The testators' two daughters - the intended beneficiaries - sued the firm for negligence.

The claim was dismissed at first instance, upheld on appeal and the matter came to the House of Lords.Those in favour of dismissing the appeal were Lords Goff, Browne-Wilkinson and Nol an.

Those for allowing the appeal were Lords Mustill and Keith.For Lord Keith, to admit the plaintiffs' claim would be to give them the benefit of a contract to which they were not parties.

Further, he argued that, as the case was so far removed from the circumstances in Hedley Byrne v Heller & Partners [1964] AC 465 and Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506 (a negligence claim by Lloyds Names against their managing agents) there was no possibility of an incremental advance that would provide a remedy.Lord Goff felt that considerations of practical justice required that the plaintiffs should succeed.

He recognised that an ordinary action in tortious negligence along the lines proposed in Ross v Caunters [1980] Ch 297 was inappropriate and that there was a lacuna in the law.

This he was prepared to fill by fashioning a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to be extended to the intended beneficiary who, as the solicitor could reasonably foresee, might, as a result of the solicitors' negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate would have a remedy against the solicitor.Lord Browne-Wilkinson concluded that the defendants were under a duty of care to the plaintiffs arising from an incremental extension to the principle of assumption of responsibility explored in Hedley Byrne.

Lord Nolan considered that the plaintiffs should succeed on the grounds that their claim satisfied the criteria laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 and Murphy v Brentwood District Council [1991] 1 AC 398.So, what are the implications for the profession? It seems clear from the House of Lords decision that once instructions are accepted to prepare a will for a client, a solicitor will owe duty of care to his client (in contract and tort) and to the intended beneficiaries under the proposed will (in tort) to prepare the will with reasonable care, skill and expedition.

Lords Goff and Browne-Wilkinson (but not Lord Nolan) accepted that the assumption of responsibility by the solicitor to the intended beneficiaries will be subject to any term of the contract of retainer between the solicitor and client which may have the effect of excluding or restricting the solicitors' liability to the testator.A majority of their Lordships (Lord Nolan excepted) appeared to accept that, unlike any other tortious duty of care, the solicitor's duty to the intended beneficiaries will precisely 'shadow' the duty owed to the testator: if a defect in a will comes to light in the testator's lifetime, and the testator leaves the will as it is, or if a testator sanctions a lengthy delay in the preparation of a will, liability to the prospective beneficiaries, disappointed as a result of the defect or delay, will be precluded.Their Lordships seemed to distinguish between the preparation of wills and the conduct of inter vivos transactions by solicitors for their clients.

Not only is no duty of care owed by a solicitor to third parties who are his or her client's 'adversaries', but there is no liability to persons the client intends to benefit from a gift or other inter vivos transactions.The decision should also not interfere with the solicitor's ordinary responsibilities owed exclusively to his or her client, when obtaining instructions for a will.The commercial and practical impact of this decision on the solicitors' profession is difficult to predict.

It is tempting to say that nothing has changed: solicitors have been sued in negligence by disappointed beneficiaries since the decision of Sir Robert Megarry V-C in Ross v Caunters.

No previous decision extended a solicitor's liability to beneficiaries disappointed for lack of a will, but the distinction in principle between such a case and the case of a will which is wholly or partly invalid could never be easily drawn.Importantly, the recognition of limitations on liability to intended beneficiaries, imposed as result of limitations in the solicitor's retainer by the testator, allows the solicitor to protect him or herself by a written letter of retainer, explaining the scope of the undertaking for which the solicitor will be taken to have assumed responsibility.What of the wider implications? The decision in White v Jones appears to have been intended, at least by Lords Goff and Browne-Wilkinson, to apply uniquely to the solicitors' practice of preparing wills.

No other obvious application has the peculiar hallmarks relied upon by the majority of their Lordships to create the special circumstances justifying the extension of the law of tort.But the speeches of the majority are also cast in wider terms, and it remains to be seen whether parties standing in analogous, even if not equivalent, positions might be able to rely on the principles discussed.Consider, for instance, the words of Lord Browne-Wilkinson: 'Although reliance by the plaintiff is an essential ingredient in a case based on negligent misstatement or advice, it does not follow that in all cases based on negligent action or inaction by the defendant it is necessary in order to demonstrate a special relationship that the plaintiff has in fact relied upon the defendant or the defendant has foreseen such reliance.

If in such a case careless conduct can be foreseen as likely to cause and does in fact cause damage to the plaintiff that should be sufficient to found liability.'The echoes of Anns v Merton London Borough Council [1978] AC 728 are inescapable in this passage.