Carr-Glynn v Frearsons

A solicitor instructed to implement testamentary wishes must take reasonable steps to ensure that a specifically intended gift can take effect. Where the efficacy of a gift of jointly owned property depends on severance, and severance can promptly remove the risk, reasonable care may require advice to serve a notice of severance when the will is executed.

The solicitor’s assumed responsibility may extend to the intended specific legatee where negligence in the will-making process prevents an asset entering the estate. That extension can apply even though the estate has a claim, provided that the legatee would otherwise receive no benefit from it. The legatee’s and estate’s remedies are complementary and must prevent double recovery.

The testatrix instructed her solicitors to replace a small pecuniary legacy to her niece with a gift of her half interest in Homelands. The property was beneficially owned with her nephew as joint tenants. Because no notice of severance was served, the interest passed by survivorship and the intended gift failed.

Mr Justice Lloyd dismissed the niece’s negligence action. He held that the solicitors had acted reasonably and that they owed no duty to an intended beneficiary where the estate itself had a remedy: [1997] 2 All ER 614.

The appeal concerned whether the solicitors were negligent in failing to advise immediate severance and whether their responsibility to the testatrix extended to the disappointed specific legatee despite the estate’s potential claim.

1. Appeal allowed unanimously. Lord Justice Chadwick held, with Lord Justice Thorpe expressly adopting his reasoning and Lady Justice Butler-Sloss agreeing, that the trial judge was wrong to find the solicitors’ conduct entirely reasonable and proper.

2. Once the solicitors knew that the ownership of Homelands was uncertain, a competent solicitor would have advised the testatrix to serve a notice of severance before or when executing the will. Severance was simple, unilateral and removed the risk that survivorship would defeat her wishes. There was nothing to be gained by postponing it until the deeds had been obtained. The unchallenged finding was that the testatrix would have acted on that advice.

3. The omission was part of the will-making process, not independent inter vivos advice. Applying the majority approach in White v Jones [1995] 2 AC 207, the court held that the solicitors’ assumed responsibility could extend to the intended legatee. The failure concerned getting the asset into the estate so that the testamentary gift could take effect; it would be artificial to deny the beneficiary a remedy on that basis.

4. The estate’s potential claim did not preclude a beneficiary’s claim where recovery by the estate would pass to a residuary beneficiary who had suffered no loss. The duties were complementary. The specific legatee could recover the loss of the interest that she would have received, while the personal representatives could recover only loss suffered by other persons interested in the estate, including any loss caused by estate liabilities. This allocation avoided double liability and double recovery.

5. Where other estate interests may be affected, it is appropriate for the personal representatives and specific legatee to be parties so that all issues are resolved together under the Rules of the Supreme Court 1965. Non-joinder did not defeat this action, because no other person was alleged to have suffered loss. Damages were to be assessed if not agreed.

• Court of Appeal: Allowed the niece’s appeal and reversed the dismissal of her negligence claim.
• High Court: Mr Justice Lloyd dismissed the action by order of 17 December 1996, holding that there was no duty to the intended beneficiary and no breach of duty: [1997] 2 All ER 614.