White v Jones

A solicitor who accepts instructions to prepare a will may owe the intended beneficiary a duty to exercise proper care and expedition. The duty arises through an extended assumption of responsibility where negligent performance foreseeably deprives the beneficiary of the intended legacy and neither the testator nor the estate can recover that loss.

Actual reliance by the beneficiary is not indispensable. Pure economic loss, including the loss of an expected testamentary benefit, may be recovered. An omission may breach the duty once responsibility for the task has been assumed. The duty concerns the particular beneficiaries whom the testator intended to benefit. Liability does not arise where the defect is discovered before death and the testator chooses not to confer the benefit.

The testator instructed his solicitors to replace an existing will with one giving each of his two daughters £9,000. The solicitors delayed despite receiving clear written instructions. The testator died before the replacement will was prepared, and the existing will took effect. His daughters therefore received nothing.

Turner J dismissed their negligence claims. He declined to extend Ross v Caunters to a failure to prepare a will and regarded the alleged loss as too speculative. The Court of Appeal, reported at [1993] 3 W.L.R. 730, reversed that decision and awarded each daughter £9,000.

The central issue before the House was whether a solicitor retained by a testator owes a duty of care to an intended beneficiary who loses the intended testamentary benefit through the solicitor's negligence.

1. Appeal dismissed by a majority of three to two. Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Nolan held that the solicitors owed the intended beneficiaries a duty of care. Lords Keith of Kinkel and Mustill dissented. The Court of Appeal's order and the awards of £9,000 to each respondent were affirmed.

2. Per Lord Goff, whose proposed extension was expressly accepted by Lord Browne-Wilkinson and whose reasons were also relied upon by Lord Nolan, the assumption of responsibility recognised in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465 should extend to an intended beneficiary. The solicitor knew that negligent delay could deprive the beneficiary of the intended legacy. Unless the beneficiary could sue, the person suffering the loss would have no claim, while the testator and the estate, which possessed the ordinary contractual rights, would have suffered no recoverable loss.

3. Per Lord Browne-Wilkinson, the extension was incremental and analogous to established special relationships. An assumption of responsibility concerns responsibility for the task, rather than a conscious assumption of legal liability. Actual reliance is essential to many negligent-statement claims, but it is not indispensable where negligent action or inaction foreseeably harms a person whose economic welfare depends upon careful performance of the assumed task. Will-making was distinctive because the error would commonly remain hidden until the testator's death, when correction became impossible.

4. Per Lord Goff, the duty could cover negligent omissions as well as positive acts. Pure economic loss and the loss of an expected testamentary benefit were recoverable under the extended principle. The duty was owed to the particular beneficiary or beneficiaries whom the client intended to benefit through the proposed will, rather than an indeterminate class. Liability would not arise if the defect became known before death and the testator chose to leave matters unchanged or continued to exclude the beneficiary.

5. Per Lord Nolan, the testator's intentions were firm, clear and attainable. Each respondent had therefore proved a minimum loss of £9,000. He recognised that other claims might fail where a further change of mind, insufficient assets or another uncertainty made the alleged benefit speculative.

6. Lord Goff considered that the extended responsibility would be subject to an effective contractual restriction on the solicitor's liability to the testator. Lord Nolan preferred to leave open whether a contract could directly exclude liability to third parties, while accepting that its terms could define the task and affect the tortious duty's extent.

7. In dissent, Lord Mustill, with whom Lord Keith agreed, considered that the authorities depended upon a relationship, undertaking or reliance absent between the solicitor and beneficiary. The proposed duty could not be derived incrementally from Hedley Byrne and risked circumventing privity by giving beneficiaries the benefit of a contract to which they were not parties.

1. House of Lords: In White v Jones [1995] 2 AC 207, the House dismissed the solicitors' appeal by a majority of three to two and affirmed the Court of Appeal's order.
2. Court of Appeal: By its order of 3 March 1993, reported at [1993] 3 W.L.R. 730, the court reversed Turner J. It held that the solicitors owed and breached a duty of care, and awarded each daughter £9,000.
3. High Court: Turner J dismissed the claims. He declined to apply Ross v Caunters to a failure to prepare a will and held that the alleged loss was too speculative and uncertain.