The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will should first establish whether rectification of the will was available, and only after failure then seek to claim under professional negligence. The solicitors had failed to carry out the testator’s express instructions, and a claim by a disappointed beneficiary might stand. However the claimant here also could seek rectification of the will. The recovery of damages against a negligent solicitor had the effect of enabling the beneficiaries under the Will to retain ‘adventitious benefits’, and accordingly fairness required that the beneficiaries share the cost of putting things right by means of rectification proceedings.
Simon Brown LJ, Mummery LJ, Sir Christopher Slade
Times 25-Nov-1998,  EWCA Civ 1806,  1 All ER,  1 WLR 727,  PNLR 531
Administration of Justice Act 1970 20
England and Wales
Distinguished – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Distinguished – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Distinguished – Carr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
Cited – In re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Cited – Mersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
Cited – Pilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
Cited – Wintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .
Cited – Powell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Professional Negligence, Damages, Costs
Updated: 12 January 2022; Ref: scu.90250