Probate law

Negligence for failure to execute a willHooper v Fynmores (a firm) [2001] Gazette, 28 June, 45 When there is delay resulting from negligence in securing the execution of a will, to whom is the solicitor's duty owed?This case is worth a second look both for the facts and for the apparent suggestion that a solicitor may owe a duty to beneficiaries which goes beyond that owed to the client under the terms of the retainer.

In early September 1997 a solicitor prepared a will for an elderly client (C) increasing the claimant's share in residue by 40,000.

C appeared to be fit and well and on 5 September approved the draft will.

The solicitor prepared an engrossment and wrote to the client asking whether he would like him to bring the will out for signature.On 8 September the client was admitted to hospital.

On 10 September the claimant left a message with the firm of solicitors explaining that C had gone into hospital and on 12 September she spoke to the solicitor concerned.On 16 September an old friend of C telephoned the solicitor to say that C was having tests and would be in touch when he was home from hospital.

(This was, in fact, an over-optimistic statement as C was very ill).

The solicitor considered that he had been 'stood down'.In October, at C's request, the hospital arranged for the solicitor to visit C on 13 October.

However, the solicitor himself went into hospital on 10 October and cancelled the appointment.

He did not arrange a new appointment and did not discuss the possibility of sending a substitute.

C died on the 21 October without executing the will.

At first instance the solicitor was found negligent.The solicitor appealed arguing that the judge had wrongly suggested that a solicitor owed a duty to an intended beneficiary which went beyond that owed to the testator arising out of the retainer and had failed to give sufficient weight to the message of 16 September 'standing him down'.Mr Justice Pumphrey said the duty of the solicitor is 'to carry out the instructions of the intending testator with proper expedition and care'.

The solicitor was entitled to rely on the client's instructions relayed through a close and reliable friend postponing action.However, the position changed when the further appointment was made.

Mr Justice Pumphrey said '....

there is a positive duty on the solicitor to satisfy himself that the additional delay caused by his (not the client's) request is not to the client's detriment'.

He said that on that basis the solicitor was, therefore, negligent and the appeal failed.It can be seen that it was not actually necessary to consider whether there was a duty owed to beneficiaries beyond the duty to the client.

Mr Justice Pumphrey did not say that there was but he did quote with approval from the judgement in White v Jones of Lord Browne-Wilkinson who (with Lord Nolan) accepted a direct relationship with the beneficiaries.However, the other law Lords did not accept this.

Lords Keith and Mustill considered that there was no liability at all and Lord Goff's judgment has been interpreted in a whole series of later cases as limiting the duty to that owed to the testator.

By Lesley King, College of Law, London