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 lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor.
Held: The estate had suffered no proven loss. A solicitor, following his client’s instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants.


Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick


Times 09-Jun-1999, Gazette 16-Jun-1999, [1999] EWCA Civ 1520, [2000] PNLR 140


England and Wales


CitedWilkinson v Corfield PD 26-Jan-1881
A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. . .
CitedSutton v Drax 1815
. .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
CitedCarr-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 . .
CitedWhite 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 . .
CitedRoss 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 . .
CitedLindop v Stuart Noble and Sons Ltd OHCS 25-Jun-1998
In Scottish receivership an employee was not entitled to claim for preference of payment of claim for wages for absence of notice when the company went into receivership. Scottish receivership distinct process. . .

Cited by:

CitedMartin 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 21 January 2023; Ref: scu.146435