CORBETT v BOND PEARCE (A FIRM)

A solicitor’s duty is defined by the retainer and by the kind of loss against which the solicitor must protect the client. Where negligent will-making causes probate litigation, the estate’s loss cannot be recovered if the same substantive loss has already been compensated through a claim by the intended beneficiaries. The duties owed to the testator and intended beneficiaries are complementary. They must be applied so as to avoid double recovery and double liability. The personal representative cannot recover costs from the solicitor where doing so would compensate the estate for a loss which, in substance, has already been met by payment to the disappointed beneficiaries.

The claimant, as personal representative of the testatrix, sued the defendant solicitors for breach of contract and negligence. The solicitors had failed to procure a valid will reflecting the testatrix’s later testamentary intentions, causing a probate action after her death and substantial costs payable from the estate.

The intended residuary beneficiaries under the invalid later will had separately settled claims against the solicitors for the value of the residue, calculated without deduction for the probate costs. Eady J, in [2000] Lloyds Rep PN 805, held that the estate could recover the probate costs and related losses. The central issue was whether the estate could recover despite the settlement with the disappointed beneficiaries.

1. Appeal allowed. The answers to questions 1(a) and 1(b) were negative. Question 2 did not arise on the information before the court. The parties were given liberty to apply to the Queen’s Bench Division on appropriate evidence.
2. The solicitor’s duties arose from the retainer. The scope of the duty had to be determined by reference to the kind of damage against which the solicitor was required to protect the client. The duty was not defined in the abstract.
3. The retainer’s purpose was to procure a legally effective will giving effect to the testatrix’s latest testamentary intentions. The relevant loss was the loss suffered by those who would have become interested in the estate under that will, including intended beneficiaries and creditors. It was not the loss suffered by beneficiaries under the earlier will, because the testatrix no longer intended that will to govern her estate.
4. The contractual duty to the testatrix and the tortious duty to the intended beneficiaries under the later will were complementary. Applying the rationale of Carr-Glynn v Frearsons, the solicitors were liable to compensate the disappointed beneficiaries for the residue undiminished by the probate costs. They could not also be liable to the personal representative for those costs, because the two sums represented the same monetary loss in substance.
5. Allowing both claims would produce double liability and double recovery. It would also transfer compensation to persons whom the testatrix had not intended to benefit under the residue. The claimant’s status as personal representative did not alter the scope of the duty or justify recovery of the same substantive loss.
6. The court expressed sympathy for the difficulty of the case but held that the judge’s order could not stand. The defendant was awarded the costs of the preliminary issues, subject to detailed assessment, and the claimant was ordered to repay £24,500 relating to those costs.

• Court of Appeal (Civil Division): appeal allowed; the answers to questions 1(a) and 1(b) were substituted with negative answers, with liberty to apply concerning question 2.
• Queen’s Bench Division, Eady J: by judgment dated 25 May 2000, reported at [2000] Lloyds Rep PN 805, answered questions 1(a), 1(b) and 2 in the affirmative, affirmative and negative respectively.