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 outside the terms of the retainer or where there is no retainer at all.
Lord Browne-Wilkinson: ‘. . . By accepting instructions to draft a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered . . . the assumption of responsibility referred to is the defendants’ assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed. If this be the right view, it does much to allay the doubts about the utility of the concept of assumption of responsibility voiced by Lord Griffiths . . .’
Lord Goff, Lord Browne-Wilkinson, Lord Keith, Lord Mustill, Lord Nolan
Independent 17-Feb-1995, Times 17-Feb-1995, [1995] 2 AC 207, [1995] UKHL 5, [1995] 1 All ER 691, [1995] 2 WLR 187
Bailii
England and Wales
Citing:
Appeal from – White and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – 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 . .
Cited – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited by:
Cited – Gorham and others v British Telecommunications Limited Plc, the Trustees of the BT Pension Scheme Standard Life Assurance Company S/S CA 27-Jul-2000
Where an insurance company gave financial advice to a person to whom they owed a duty of care, and they were aware that that person was intending to provide for his dependants, then the insurance company owed the dependants a duty of care also. The . .
Cited – Johnson v Gore Wood and Co (A Firm) ChD 3-May-2002
The respondent firm acted on behalf of the claimant’s companies in land transactions. An option had been taken to purchase land, and he instructed the defendants to exercise it. The landowner claimed the notice to exercise the option was invalidly . .
Appealed to – White and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
Cited – Corbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Cited – Worby, Worby and Worby v Rosser CA 28-May-1999
Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
Cited – Esterhuizen and Another v Allied Dunbar Assurance Plc QBD 10-Jun-1998
A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – Atkins v Dunn and Baker (A Firm) CA 19-Feb-2004
The claimant’s father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Cited – Woodward v Wolferstans (A Firm) ChD 20-Mar-1997
The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said . .
Distinguished – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
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 . .
Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Credit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Professional Negligence
Leading Case
Updated: 09 November 2021; Ref: scu.90455