Duty of Care and Negligence in Will Preparation: A Shift in Legal Obligations, Lecture notes of Law

Download Duty of Care and Negligence in Will Preparation: A Shift in Legal Obligations and more Lecture notes Law in PDF only on Docsity! Duty of Care and Negligence in Will Preparation The law of negligence is constantly evolving and nowhere is the pace faster than in the area of negligent Will preparation. Until recently, lawyers preparing a Will have been exempt from the consequences of their mistakes and could not be sued for issues arising from a negligently drafted Will. The historical position had been established in the Victorian case of Robertson v Flemingi which was held as good law right up until 1979 and used as an authority in relation to Will preparation with regard to negligence. This case stated: “Mistakes in the preparation of a Will give no cause of action to the intended beneficiary since the solicitor owes no duty to anyone other than his client, the testator.” One of the judges sitting on the case panel, Lord Campbell L.C opined that ‘it was not the law of Scotland or of England or of any country where jurisprudence has been cultivated as a science’ to allow a disappointed beneficiary to sue the testator’s solicitorii. Therefore this position seems to be unfair and unjust, but it was founded on solid legal principles which adhere to the concept of Privity of Contract. In simple terms, the law said the contract for the service of preparing the Will was made between the client (the testator) and the solicitor/Will Writer. The above principle only allowed the testator the right to sue for any negligent acts which had been committed. Therefore, if a client died and a negligent error came to light they were no longer in a position to pursue a claim. The rule of Privity of Contract as we see only extends to the testator as opposed to his beneficiaries who have suffered the actual loss. As a result any claim of negligence would die with the client leaving the drafter with no potential negligent claims. While this position may have satisfied the academic law purist, most people regarded it as highly unsatisfactory. Beneficiaries were missing out and the negligent lawyers were getting away ‘scot- free’. However, it was not until the late 1970’s that the court Judges began to acknowledge and consider extending the duty of care to beneficiaries as they are “so closely and directly affected” by the acts of a solicitor preparing a Will. The breakthrough came in 1979 with the land mark case of Ross v Caunters (1980)iii. The facts involved in this case are that the drafting solicitor failed to warn the testator that their spouse (who was also a beneficiary) was not to witness the Will. The act of not informing the testator of this basic rule meant the duty of care which was owed to testator had been breached. The result was the rule of Privity of Contract should not prevent an intended beneficiary from taking legal action to recover losses they have suffered as a result of a Will being negligently prepared. It is important to note that the above case shows a move away from the right of Privity of Contract to ensure the beneficiaries are also recognised as being owed a duty of care. The effect is the Will drafter needs to ensure that they undertake their role correctly and discharge their duty of care not just to the clients but also to the beneficiaries of a Will. The idea of duty of care was further developed in White v Jonesiv, which was a decision about a solicitor’s failure to prepare a Will for an elderly testator. In this instance there had been an excess of 40 days between when the instruction were actually taken to the drafting of the document. In this specific case the solicitor failed to draft amendments to the Will before the testator died. With the result, although showing no direct loss to the estate, it did result in a loss to intended beneficiaries being the testators daughters as no provision was made for them in the existing Will. The House of Lords held, by a bare majority, that where a client had instructed a solicitor to prepare a will for execution and where, as a result of the solicitor’s negligence, an intended legatee was reasonably foreseeably deprived of a legacy, the solicitor was liable to the intend legatee for the loss of the legacy. The result was achieved by extending the assumption of responsibility principle, i.e. the assumption of responsibility by a solicitor towards his client in circumstances in which there was no confidential or fiduciary relationship; and neither the testator nor the estate had a remedy against the solicitor. In this way common law was fashioning “a remedy to fill a lacuna in the law so as to prevent the injustice which would otherwise occur”v The traditional position had regarded this area as separate domains of contract and tortvi. Lord Goff suggested in White v Jones, that the imposition of liability was designed to do practical justice in a case where in the absence of a remedy one could be fashioned by the court, neither the testator’s estate nor the intended beneficiary would have a claim for the loss caused by the negligence. He thought that there had to be boundaries to the availability of a remedy in such cases, but that these boundaries would “have to be worked out in the future, as practical problems come before the courts”vii. This decision enforced the rule in Ross v Caunters and White v Jones further establishing any loss caused by negligence on behalf of a Will drafter, causing loss to a disappointed beneficiary would allow the beneficiary to take legal action on the grounds of breach of duty of care against them, as the Will Writer had not exercised their professional duty to a standard which is required from them. The terms of duty owed to a disappointed beneficiary depend on the nature of the original instructions given by the testator. If therefore, there is no breach of duty to the testator, the disappointed beneficiary even if they suffer a loss will have no claim. As Chadwick L.J. pointed out in Carr-Glynn v. Frearsonsviii, “The duty owed by the solicitors to the specific legatee is not a duty to take care to ensure that the specific legatee receives his legacy. It is a duty to take care to ensure that effect is given to the testators intentionsix” Therefore it is preferable that Will preparation is maintained as a structured process avoiding these potential problems as mentioned above. The best way to alleviate problems and mitigate any issues is by ensuring good client service thus avoiding the pitfalls as listed below:- (1) The duty of Care; (2) Time taken to prepare a Will; (3) Retainers and terms of business; and (4) Managing risk. The first topic considers what is a ‘duty of care’ and to what standard must this be performed for it to be extinguished. In applying this standard we have two definitions we can use; the first examines what is the standard which should be achieved by ordinarily members of a professional practice in which they trade. The second standard is what the courts use to assess the standard of care a member of a professional practice ought to achieve in performing their role.