White v Jones [1995] UKHL 5

Mr Barratt instructed his solicitors to revise his will to benefit his reconciled daughters, but they negligently delayed and he died before execution. The daughters received nothing under the old will. The House of Lords held, by majority, that the solicitors owed them a tortious duty of care.

Facts

Mr Arthur Barratt quarrelled with his two daughters, Carol White and Pauline Heath, following his wife’s death. In March 1986 he made a will, prepared by the defendant firm of solicitors, Philip Baker King & Co. (Mr John Jones being a legal executive there), cutting both daughters out of his estate and leaving the bulk to his former son-in-law and two granddaughters. The estate consisted principally of a modest house and small savings.

By mid-June 1986 the family rift healed. Mr Barratt told his daughters what he had done and what he now wished to happen, and told Mr Jones by telephone that he wanted to change his will. Carol White also spoke to Mr Jones about her father’s wishes. Mr Jones suggested that Mr Barratt should write down what he wanted and that he (Jones) would deal with it. Mr Barratt destroyed his copy of the March 1986 will.

In mid-July, Mr Heath (Pauline’s husband) wrote out a letter of instructions for Mr Barratt to sign and send to Mr Jones. It set out a new scheme of gifts: £9,000 each to Carol and Pauline, £1,600 each to the five grandchildren, with Carol and Pauline to be responsible for legal costs and to deal with the contents of the house. The letter concluded:

“I have destroyed the original will … I trust the above is as required.”

The letter was received by the solicitors on 17 July 1986. Nothing effective was done for a month. Mr Jones failed to keep several appointments to see Mr Barratt. On 16 August he dictated an internal memorandum asking the probate department to draw up either a new will or an addendum “as soon as possible” and noting that he would go to Mr Barratt’s house to have the will executed. The memo was not transcribed until 5 September. Mr Jones then went on holiday.

Mr Barratt went on holiday on 23 August, suffered a fall and later a heart attack. He returned home in early September and died on 14 September 1986, three days before the date on which Mr Jones was due to visit him with the new will. The March 1986 will was admitted to probate. The July letter was not witnessed in accordance with the Wills Act 1837 and could not operate as a will.

The daughters, who would each have received at least £9,000 under the proposed new will but received nothing under the existing will, brought proceedings in negligence against the solicitors, claiming that Mr Jones’s inexcusable delay had caused their loss.

Issues

Primary legal questions

• Whether a solicitor instructed by a testator to prepare a will owes a duty of care in tort to intended beneficiaries who are not his clients.
• Whether such a duty can extend to pure economic loss consisting of the loss of an expected testamentary benefit.
• Whether recognising such a duty improperly circumvents the doctrines of privity of contract and consideration, or invades an “exclusive zone” of contractual liability.
• Whether the solicitor’s failure (a negligent omission or delay rather than a positive act) can found liability in tort to a third party.
• Whether policy concerns, including fears of indeterminate liability and conflicts with established principles, should preclude such a duty.

Procedural history

At first instance, Turner J dismissed the claim. He declined to apply Ross v Caunters (a case where a will failed due to negligent attestation) to a situation where the will was never drawn up, and considered that the alleged loss was too speculative.

The Court of Appeal (Sir Donald Nicholls V-C, Steyn and Hirst LJJ) reversed that decision. It held that the solicitors owed a duty of care in negligence to the daughters, that they were in breach of that duty by their delay, and that each daughter was entitled to £9,000 in damages, representing the minimum sum she would have received under the intended new will.

The solicitors appealed to the House of Lords.

Judgment

Overall outcome

By a majority (Lords Goff of Chieveley, Browne-Wilkinson and Nolan; Lords Keith of Kinkel and Mustill dissenting) the House of Lords dismissed the appeal and affirmed the Court of Appeal’s order. The House held that, in the particular circumstances, the solicitors owed a duty of care in tort to the intended beneficiaries and were liable for their loss.

Majority reasoning (Lords Goff, Browne-Wilkinson and Nolan)

Lacuna and practical justice

Lord Goff emphasised the “gap” in the law if no duty were recognised. The only person with a contractual claim – the testator or his estate – had suffered no loss, while the only persons who had suffered loss – the intended beneficiaries – had no contractual rights. He described this as a “lacuna in the law” and stated:

“the only persons who might have a valid claim (i.e., the testator and his estate) have suffered no loss, and the only person who has suffered a loss (i.e., the disappointed beneficiary) has no claim… This I regard as being a point of cardinal importance in the present case.”

He considered it just to fashion a remedy that would repair the injustice to the disappointed beneficiaries, noting the social importance of legacies and the modest sums typically at stake.

Duty of care and the Hedley Byrne principle

The majority rejected a straightforward extension of general negligence principles but turned to the Hedley Byrne “assumption of responsibility” doctrine. Lord Goff concluded that where a solicitor undertakes, for a client, to perform professional services in preparing a will, knowing that if he is negligent an identified intended beneficiary may lose a legacy and that neither the testator nor his estate will suffer recoverable loss, the solicitor’s assumption of responsibility in law extends to that beneficiary.

He proposed that in such cases:

“the assumption of 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 his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.”

This approach allowed recovery for pure economic loss, including loss of an expectation, within the Hedley Byrne framework, and covered negligent omissions as well as acts. Lord Goff further stressed that any liability would be subject to the terms of the solicitor’s retainer with the testator (for example, any exclusion of liability agreed with the client).

Incremental development and analogy

Lord Browne-Wilkinson treated the case as an incremental development by analogy with existing “special relationship” categories (fiduciary duty and Hedley Byrne negligent misstatement). He analysed “assumption of responsibility” as arising where a defendant voluntarily assumes responsibility for a task affecting another’s economic interests. He emphasised that reliance by the claimant is not necessary in all such cases (for example with fiduciary duties where the beneficiary may be unborn or unaware).

He concluded that a solicitor who accepts instructions to draw a will:

• Knows that the future economic well-being of the intended beneficiaries depends on his careful and prompt execution of the task.
• Assumes responsibility for procuring the execution of an effective will, in circumstances where the beneficiaries are wholly dependent on his performance.

Accordingly, there is a “special relationship” between the solicitor and the intended beneficiaries, to which the law attaches a duty of care.

Lord Browne-Wilkinson also relied on wider policy factors: society’s reliance on solicitors to ensure effective will-making; the absence of conflict of interest between testator and intended beneficiary in such cases; and the fact that negligence in will preparation is often not discoverable until after the testator’s death, when it is too late for the client himself to sue or rectify.

Application of Caparo/Murphy approach (Lord Nolan)

Lord Nolan approached the case through the threefold test from Caparo Industries plc v Dickman and Murphy v Brentwood DC (foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty). He accepted that, on the simple facts as found, the defendants’ inexcusable delay foreseeably caused specific and ascertainable financial loss of at least £9,000 to each daughter.

He regarded the proximity as particularly strong in this case: the appellants were family solicitors; Carol White had herself communicated the new wishes to Mr Jones and arranged the appointment; Mr Heath had drafted the crucial instruction letter. He thought it “absurd” to say that they did not rely on the solicitors to implement the instructions.

For Lord Nolan, it was fair, just and reasonable to impose a duty, especially given the unchallenged standing of Ross v Caunters for 15 years and its international and academic support. He noted that the practical effect of recognising the claim was to increase the estate, creating a “curious asymmetry”, but concluded that this did not outweigh the simple justice of compensating the actual loss caused by the solicitors’ breach of professional duty.

Scope and limits of liability

The majority addressed concerns about indeterminate liability. Lord Goff endorsed the Vice-Chancellor’s observation that in such cases liability is not to an indeterminate class but to specific beneficiaries intended to benefit under a particular will, usually a small and identified group. Any more complex cases could be dealt with if and when they arose.

They also rejected arguments that the claim improperly invaded the “exclusive zone” of contract. The duty was located in tort, through assumption of responsibility, without undermining privity of contract or imposing a jus quaesitum tertio. Comparative references (including German doctrines such as Vertrag mit Schutzwirkung für Dritte and Drittschadensliquidation, and legislative solutions in the Carriage of Goods by Sea Act 1992) were used illustratively, not as direct sources of law.

Dissenting reasoning (Lords Keith of Kinkel and Mustill)

Lord Keith and Lord Mustill would have allowed the appeal.

Lord Keith considered that allowing the claim would, in substance, give the intended beneficiaries the benefit of a contract to which they were not parties, conflicting with the rule against jus quaesitum tertio. He could not identify any decided case whose reasoning could be extended incrementally to support the claim, nor could he accept that the plaintiffs’ alleged loss – a disappointed expectancy – was actionable in tort in the absence of any existing proprietary or financial interest harmed by the defendants.

Lord Mustill undertook an extensive analysis of contract and tort principles. He stressed that the solicitor’s obligation arose from his retainer with the testator, and that the beneficiaries’ loss was the failure to receive a benefit the testator, not the solicitor, had intended to confer. In his view:

• There was no mutual relationship between solicitor and intended beneficiaries of the kind contemplated in Hedley Byrne.
• The solicitor did not undertake any responsibility to the beneficiaries; he acted only for the testator.
• Any attempt to use notions of “transferred loss” or contractual analogies would force contract and tort beyond acceptable bounds.

He saw the claim as asking the law of tort to fill a perceived moral gap arising from the formal requirements of the law of wills, and thought such an extension neither principled nor required.

Implications

Legal significance

• The decision confirms that solicitors instructed to prepare or revise a will may owe a duty of care in tort to identified intended beneficiaries, notwithstanding the absence of contract and despite the general rule that a solicitor’s duty is owed only to his client.
• It extends the Hedley Byrne “assumption of responsibility” principle to cover pure economic loss consisting of the loss of an expected testamentary benefit, and to negligent omissions where the professional has assumed responsibility for a task.
• It acknowledges and fills a specific “lacuna” where, in will-drafting negligence, the person with the contractual claim (the testator or estate) typically suffers no loss, while the person who suffers loss (the intended beneficiary) has no contractual rights.
• The case affirms that contract and tort duties can co-exist; the contractual retainer may define and limit the scope of the tortious duty, but does not exhaust the solicitor’s responsibilities.

Practical impact

• Practitioners drafting wills must exercise reasonable skill and expedition, mindful that negligence may expose them to claims from intended beneficiaries as well as from the estate.
• Professional indemnity insurers must price and manage the risk of such third-party claims in the will-making context.
• The decision underpins later English authority treating disappointed beneficiary claims as part of the established law of negligence, while leaving open detailed questions about the outer limits of the duty (e.g. complex classes of beneficiaries or inter vivos transactions).

Verdict: The House of Lords, by a majority, dismissed the solicitors’ appeal, affirmed the Court of Appeal’s order holding that a duty of care in tort was owed to the testator’s intended beneficiaries, awarded each daughter £9,000 in damages, and ordered the appellants to pay the respondents’ costs.

Source: White v Jones [1995] UKHL 5