Solicitors

Preparation of will - duty to ascertain intentions of testator - scope of duty of care to intended beneficiaryGibbons and another v Nelsons (a firm) and others: ChD (Blackburne J): 5 April 2000

Under the terms of her father's will, the testator had a life interest in a half share of a trust fund, coupled with a general power exercisable by deed or will to appoint what should happen to the trust fund after her death; in default of appointment the testator's interest in the fund passed to the claimant as her next of kin.

The testator's last will expressly exercised the power of appointment so as to dispose of her interest in the fund in the same manner as the rest of her separate estate, being distributed equally among nine charities.

Believing the testator had intended to leave her interest in the fund to her, the claimant commenced proceedings against the solicitor who had prepared the will, alleging he had negligently failed to ascertain the testator's intentions in relation to the trust fund.Samuel Laughton (instructed by German & Soar, Nottingham) for the claimants.

Thomas Dumont (instructed by Browne Jacobson, Nottingham) for the defendants.Held, dismissing the claim, that once it was established that a solicitor had been retained to prepare a will, it was for the solicitor to show that his responsibility for the preparation of the will did not extend to advising the client on some aspect of the will relevant to the claim; that the solicitor owed the testator a duty to remind her of her power of appointment in relation to the trust fund (and that her interest in it would go to the claimant if she failed to exercise the power), to ascertain her wishes in that regard and to give effect to them; that the claimant had failed to establish that the testator when executing the will had intended to leave her share of the fund to her; that, in any event, a solicitor only owed a duty of care to the intended beneficiary of a will when he knew of both the benefit which the testator-client wished to confer and the persons or class of persons upon whom that benefit was to be conferred; and that, accordingly, the fact the solicitor had been aware of the trust fund, of the testator's closeness to the claimant and, if he had thought about the matter, of the possibility that the testator might have wanted to appoint some or all of her interest in the fund to her was not enough to establish that the solicitor owed the claimant a duty of care.