RFPG

1 December 2016

Will Making in Scotland – Current (and other) Issues

Recent Case Law on Professional Negligence, Testamentary Capacity and Associated Issues

In so far as alleged negligence in Will making is concerned, I think that most of you will be familiar with the leading cases and some of the more recent cases. However, to recap, following the House of Lords decision in the case of Robertson v. Fleming (1861) for Macqueen 167, for many years Scottish Solicitors were protected against claims by “disappointed beneficiaries” in relation to alleged negligence in the making of a Will.

Over the years, there were several attempts to overturn the “shield” offered by Robertson v. Fleming.

The shield provided against Robertson v. Fleming protected both Scottish and English Solicitors although the case of Ross v. Canters (1980) Chancery 297, appears to have “slipped through the net”.

Erosion of the Historical Protection

The question of to just whom the will making solicitor owed a duty of care was examined in the House of Lord’s decision in White –v– Jones 1995 2A.C.207. Interestingly, in that English case reference was made to the Scottish decision in Robertson –v– Fleming. Lord Goff suggested that the comments of the learned judges referred to above had been obiter. But were they?

Lord Goff found as follows:-

“I turn to the principal issue which arises on the Appeal which is whether in the circumstances, the testator’s Solicitors are liable to the disappointed beneficiary … Arguments having been squarely raised in … the present case; it cannot be likely dismissed. They have to be faced; and it is immediately apparent that they raise the question of whether the claim properly falls within the Law of Contract or the Law of Tort … Here I refer not only to the fact that the claim is one for damages for pure economic loss but also … to the fact that the damages claimed are for the loss of an expectation and also to the fact … that the claim in the present case can be said to arise from a pure omission, and as such will not (apart from special circumstances) give rise to a claim in tortious negligence. Faced with points such as these, the strict lawyer may well react by saying that the present claim can lie only in contract, and is therefore not open to a disappointed beneficiary …

It must not be forgotten however that a Solicitor who undertakes to perform services for a client may be liable to his client for failure to exercise due care and skill in relation to the performance of those services not only in contract but also in negligence under the principle in Hedley Byrne –v- Heller … on the basis of assumption of responsibility by the Solicitor towards his client. Even so there is great difficulty in holding, on ordinary principles, that the Solicitor has assumed any responsibility towards an intended beneficiary under a Will which he has undertaken to prepare on behalf of his client but which, through his negligence, has failed to take effect in accordance with the client’s instructions. The relevant work is plainly performed by the Solicitor for his client; but in the absence of special circumstances it cannot be said to have been undertaken for the intended beneficiary.

Certainly, again in the absence of special circumstances there will have been no reliance by the intended beneficiary on the exercise by the Solicitor of due care and skill; indeed, the intended beneficiary may not even have been aware that the Solicitor was engaged in such a task or that his position might be affected …

The Hedley Byrne principle cannot, in the absence of special circumstances, give rise on ordinary principles to an assumption of responsibility by the testator’s Solicitor towards an intended beneficiary. Even so, if it seems to me that it is open to your Lordships’ House … to fashion a remedy, and so prevent the injustice which would otherwise occur on the facts of cases such as the present.

In my opinion, therefore, your Lordships’ House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption or responsibility by the Solicitor towards his client should be held in law to extend to the intended beneficiary who (as the Solicitor can reasonably foresee) may, as a result of the Solicitor’s negligence, be deprived of its intended legacy in circumstances in which neither the testator nor his Estate will have a remedy against the Solicitor. … that is the solution which I would recommend to your Lordships. I see it, not only does this conclusion produce practical justice as far as all parties are concerned.

I come finally to the objection that, if liability is recognised in a case such as the present, it will be impossible to place any sensible limits to cases in which recovery is allowed … We are concerned here with a liability which is imposed by law to do practical justice in a particular type of case. There must be boundaries to the availability of a remedy in such cases; but these will have to be worked out in the future, as practical problems come before the Courts. In the present case Vice Chancellor Nicholls observed that, in cases of this kind, liability is not to an indeterminate class, but to the particular beneficiary or beneficiaries whom the client intended to benefit through the particular Will. I respectfully agree and I also agree with him that the ordinary case in one in which the intended beneficiaries are a small number of identified people. If by any chance a more complicated case should arise to test the precise boundaries of the principle in cases of this kind, that problem can await solution when such a case comes forward for decision.”

It should be noted that the decision of the House of Lords in the White case was a narrow one decided 3 to 2 that the Solicitor was liable in negligence to the intended beneficiary. It should also be noted that the decision is not without its critics.

In Lawicki, in a brief comment on the case, it is stated:-

“It is not entirely clear whether any general principle emerges from White –v- Jones, apart the rather trite suggestion that the Courts will generally attempt to find ways to do the right thing in a particular case. (One might be forgiven in this context for also drawing the conclusion that the House of Lords will try to find a way to trample on existing principles of law if it thinks it must)”.

Before I leave the White case, the decision in Ross –v- Caunters referred to above was discussed. The Ross decision was of course not binding in the House of Lords and there was in any event some suggestion that Sir Robert McGarry’s decision had been tainted by too much reliance on the case of Anns –v- Merton 1978 AC 728. This was another House of Lords’ decision, given on 12 May 1977. However, although Lawicki states that “this case probably marks the high point of the English Court’s willingness to entertain claims in negligence for pure economic loss” it is also noted that that decision was effectively overturned by the decision in Murphy –v- Brentwood (1991 AC 398) – another House of Lords, decision wherein the defendant, a Local Authority, had failed to inspect the foundations of a building adequately, with the result that the building became dangerously unstable. The plaintiff, who found himself unable to fund the necessary repairs sold the property at a substantial loss. He then sued the Local Authority for that loss. The House of Lords found against the plaintiff thus effectively ending what had been perceived to be the expansion of liability for pure economic loss experienced over the previous 20 years.

One final point in relation to the White case – the Solicitor had received instructions in July to amend the Will of his client to include certain beneficiaries. By September, when the testator died, the new Will had not been put in place (a delay of five weeks). The relevant beneficiaries brought an action in negligence against the Solicitor to recover the money they would have received under the Will. As I have indicated, the House of Lords found narrowly in favour of the beneficiaries, notwithstanding the fact that it was effectively holding that the Solicitor owed a duty of care to individuals whom he had never met and with whom he had no connection (other than the fact that they were intended beneficiaries under the Will intended by the Solicitor’s deceased client).

In the case of X (a child) v. Woollcombe Yonge (a firm) (2001) Lloyd’s Reports T N274, it was held by the Chancery Division that a firm of Solicitors had not been negligent in failing to prepare a Codicil prior to the death of their client who had appeared to be likely to live for a further six weeks from the date of instructions but had in fact died within a week. The Court took the view that the Solicitor was entitled to rely on comments made by the testator as to her state of health and her medical notes supported the view that she would live for at least another six weeks. Justice Neuberger (as he then was) commented on the time frame within which a competent Solicitor should prepare a Will. He stated

“The question as to whether a Solicitor should be concerned about that possibility must, as I have said, be one of fact and degree. Where the client is old or ill, the delay which may be acceptable will obviously be less than in the absence of any age or illness. Where there is claim of substantial risk or the client’s imminent death, anything other than a handwritten rough Codicil prepared on the spot for signature may be negligent. It is a question of the Solicitor’s judgement based on his assessment of the client’s age and state of health...”

The Present Law in Scotland?

In Weir –v- J.M. Hodge & Son 1990 SLT266, Lord Weir found himself to be bound by the decision in Robertson –v– Fleming although expressed great concern that the decision in Robertson –v– Fleming was out of kilter with the view in Scottish society, and with the modern law of negligence.

In MacDougall v. MacDougall’s Executors 1994 SLT 1175, Lord Cameron decided that a solicitor who had been careless in relation to the execution of a will owed no duty of care to a party whom the testator intended to benefit thereunder, and even if he did the duty would not extend to someone who was not an intended beneficiary under the will, merely a successor in title to the intended beneficiary.

However, the unreported case of Robertson –v- Messrs. Watt & Co (4th July 1995) (an Appeal from Arbroath Sheriff Court) appears to have proved to have been a watershed in Scottish Law in this area, even though it may not have been realised at the relevant time. In the latter case, the whole issue of whether or not a Solicitor could be liable in negligence to a disappointed beneficiary was reserved pending proof of the facts. It would seem to be that in Robertson –v– Watt & Co, a Scottish Court had at long last recognised that not only should Robertson –v- Fleming not be regarded as binding and that the Law had moved on, but also that as in White –v– Jones, the Law in Scotland could recognise a claim by a disappointed beneficiary.

In that case, the deceased’s wife had raised an action against her late husband’s Solicitors on the basis that, having been instructed by him prior to his death, they failed to advise him to make another Will in circumstances where the Will previously made by him (and in terms of which it was alleged the Pursuer had been left the whole estate) could not be found. The Pursuer contended that it had remained her late husband’s position that she should inherit the whole of his estate. No Will was made and on his death, the wife received only her prior and legal rights under the Laws of Intestacy – other members of the deceased’s family took the free estate. The Solicitors in question disputed liability to Mrs Robertson, claiming that they were not instructed in connection with the deceased’s testamentary intentions but only in relation to a dispute concerning access to a drainpipe. I am not entirely sure what happened to Robertson –v- Watt and Co thereafter but it is clear that the Court took the view that the claims of the Pursuer should be put to proof i.e. they did not simply dismiss the action as being irrelevant.

If we turn now to the case of Holmes –v- the Governor and Company of the Bank of Scotland (also known as Davidson –v– Bank of Scotland). This case has been reported at 2002 SLT544 and 2002 SCLR 481. Again, Lord Kingarth having considered all of the authorities (and giving particular importance to the case of Robertson –v- Watt & Co) refused to dismiss the action on the grounds of relevance but allowed a Proof before Answer. The Bank thereupon settled. The comments of Lord Kingarth in relation to how long it should take to make a will for a client should be noted by our profession.

In the aftermath of the Holmes case, there was professional concern as to how far the dam might have been breached. What limits might be drawn?

In England, the case of Carr-Glynn –v- Frearsons 1999 CH 326 had seemingly extended the boundaries of liability in that jurisdiction. That case involved the failure by a will making solicitor to sever a clause of joint tenancy in a title. The disappointed beneficiary sued the solicitor and was successful. In the Court of Appeal, Lord Chadwick stated

“The duty owed by the Solicitors to the testator is a duty to take care that effect is given to his testamentary intentions...the loss from which the testator in his Estate are to be saved harmless is the loss which those interested in the Estate (whether his creditors are his beneficiaries) will suffer if effect is not given to the testator’s testamentary intentions”.