Walker v Geo H Medlicott & Son

A solicitor who accepts instructions to prepare a will assumes responsibility towards its intended beneficiaries. That duty may exist even where rectification of the executed will is available.

A beneficiary alleging that an executed will fails to record the testator’s instructions must prove the alleged failure and negligence by convincing evidence on the balance of probabilities. A misunderstanding does not itself establish negligence.

Where rectification would directly secure the intended testamentary benefit and rests on the same evidence, the beneficiary should ordinarily pursue that remedy before claiming damages from the solicitor. An unreasonable failure to do so may constitute a failure to mitigate loss.

The appellant claimed that the respondent solicitors had negligently omitted from his aunt’s executed will an intended specific devise of her house to him. The testatrix’s preliminary handwritten note referred to the house and contents, but the solicitor’s contemporaneous attendance note and the executed will placed the house in residue.

The Birmingham County Court entered judgment for the solicitors. The judge found that the appellant had not proved negligent failure to follow the testatrix’s instructions. The appellant appealed. The Court of Appeal considered the evidential burden, the solicitor’s duty to an intended beneficiary, and whether the appellant should first have sought rectification under section 20 of the Administration of Justice Act 1982.

1. Appeal dismissed unanimously. Sir Christopher Slade, with whom Mummery and Simon Brown LJJ agreed, held that the county court was entitled to find that negligent failure to carry out the testatrix’s instructions had not been proved.

2. The solicitor’s duty of care could extend to an intended beneficiary even though rectification of the executed will was available. Mummery LJ reasoned that the assumption of responsibility recognised in White v Jones [1995] 2 AC 207 was not confined to cases in which neither the testator, the estate nor the beneficiary had another remedy. Simon Brown LJ agreed that the recognised duty logically extended to this situation. This point had, however, been conceded by the solicitors and was unnecessary to the result.

3. A beneficiary who alleges that an executed will fails to record the testator’s instructions must establish by convincing evidence, on the balance of probabilities, both the instructions and a negligent failure to implement them. The formality of execution, the testator’s knowledge and approval, and the availability of rectification give substantial evidential weight to the proposition that the will records the testator’s intentions.

4. The trial judge was entitled to rely on the solicitor’s contemporaneous attendance note, his habitual practice and the judge’s assessment of his honesty and professional competence. Although there was strong evidence that the testatrix intended and believed that the appellant would receive the house, this did not prove that she gave the alleged instruction at the material interview or that any misunderstanding was negligent.

5. There was also an independent ground for dismissing the claim. If the appellant’s allegations were correct, the will’s failure would have resulted from a clerical error or failure to understand instructions within section 20(1) of the Administration of Justice Act 1982. A successful negligence case would therefore have established a still stronger claim for rectification, although successful rectification would not necessarily establish negligence.

6. The appellant acted unreasonably by failing first to seek rectification. Unlike the uncertain third-party litigation considered in Pilkington v Wood [1953] 1 Ch 770, rectification depended on the same evidence and presented no greater difficulty than the negligence claim. It would also give effect to the testatrix’s intentions without leaving unintended beneficiaries with adventitious benefits or creating scope for abuse. Any remaining negligence damages would ordinarily be confined to loss such as the reasonable costs of rectification.

1. Court of Appeal: Dismissed the appellant beneficiary’s appeal and upheld judgment for the respondent solicitors.
2. Birmingham County Court: His Honour Judge Perrett QC entered judgment for the solicitors on 24 October 1997 because negligent failure to carry out the testatrix’s instructions had not been proved.