Testator purporting to execute at home will drafted by solicitors and returning it to solicitors who then checked it - will found to be unsigned and invalid following testator's death - solicitors owing intended beneficiary duty of care and liable to her

Humblestone v Martin Tolhurst Partnership (a firm): ChD (Mr Justice Mann): 6 February 2004

The defendant solicitors drafted a will for the testator that he then took away with the intention of executing it later.

When the testator returned the will to the defendants for safekeeping it was checked by them and declared to be in order.

However, after the testator's death, it was found that the will had not been signed by him.

The claimant, who would have been entitled under the will had it been validly executed, sued the defendants in negligence for not having identified the defects in execution.

Robert Leonard (instructed by Morlings, Maidstone) for the claimant; Gilead Cooper (instructed by Thomson Snell & Passmore, Tunbridge Wells) for the defendants.

Held, giving judgment for the claimant, that, where a solicitor had drafted a will that had not then been executed under his supervision, when it was returned to him for safekeeping the normal fulfilment of his retainer required him to check that, on its face and on the facts then known to him, its execution was ostensibly valid; that the defendants had also assumed a duty by checking the will when it was returned; and that, in the circumstances, that duty had been breached.