Can I Make A Negligence Claim Against A Solicitor As A Disappointed Beneficiary?

A Will is only valid once it meets the formalities of Section 9 of the Wills Act 1837, which requires that the Will must:

• Be in writing;
• Be signed by the testator; and
• Be witnessed by two witnesses.

There are often cases in which a testator has given instructions to their solicitor to make a Will and the solicitor failed to carry out the testator’s instructions and ensure that the Will was executed in time before the testator died. If the Will does not meet the above formalities, it was not the testator’s final Will even if the solicitor had a draft version on their file or was in receipt of the testator’s instructions to prepare the Will.

In this situation, the deceased’s estate would then be distributed in accordance with their previous valid Will or if they did not have a Will, pursuant to the rules of intestacy as set out in Section 46 of the Administration of Estates Act 1925.

This of course means that any legacies that the testator intended to give under their new Will would not pass to who they had wished, leaving those beneficiaries extremely disappointed, particularly if the deceased had told them about the legacy they intended to leave for them.

If this happened as a result of a delay on the solicitor’s part in carrying out their client’s instructions, disappointed beneficiaries may be able to bring a claim against the solicitor for professional negligence.

Professional negligence claim

To establish a professional negligence claim, you would need to satisfy the following test:

1. That a duty of care was owed to you by the solicitor;
2. That the solicitor breached that duty;
3. That their breach caused you a loss; and
4. If it did, what is the extent of the loss for which the solicitor ought to be held liable.

Duty of care

Whether a duty of care was owed to disappointed beneficiaries has been the question considered by the Courts. The duty of care would usually arise in professional negligence cases by way of the retainer in place between the solicitor and their client, who in this situation is the deceased.

The leading case of White v Jones [1995], however, established that a duty of care is also owed to intended beneficiaries, which means that disappointed beneficiaries can bring a claim for professional negligence if they have suffered a loss arising from their breach.

White v Jones [1995]

Mr White wished to change his Will for the benefit of his two daughters. His solicitor took a significant time to respond to his request, during which time Mr White died, resulting in his daughters not benefitting from his estate. The daughters brought a claim against the solicitor for his negligence.

The Court at first instance dismissed the daughter’s claim on the basis no duty of care was owed to them and they appealed to the Court of Appeal and won. The solicitor then appealed to the House of Lords.

The solicitor lost his appeal to the House of Lords by a 3:2 majority with Lord Browne-Wilkinson stating in his judgment:

Conclusion

This leading decision extended the solicitor’s duty of care to disappointed beneficiaries and so providing that the disappointed beneficiary can establish that the deceased intended to provide for them in their Will and they are now at a loss, they may have a claim against the solicitors for the loss suffered.