Humblestone v Martin Tolhurst Partnership (a firm)

A solicitor instructed to prepare a will may owe duties to both the testator and intended beneficiaries. Where the solicitor knows that the will will be returned for safekeeping after execution outside the solicitor’s supervision, the retainer ordinarily requires a check that its ostensible execution and attestation are valid. The duty may also arise from an assumption of responsibility when the solicitor checks the document and confirms that it is in order. A continuing testamentary intention until death is not an automatic requirement of the claim; any later change of intention is relevant principally to causation. The solicitor is liable where proper advice would have led to valid execution and thereby preserved the intended beneficiary’s inheritance.

Michael Fahy instructed the defendant solicitors to prepare a will under which his partner, Lynn Humblestone, would inherit. The engrossed will was dated by Mr Fahy but not signed by him. His parents had already signed in the attestation spaces, so the document was also improperly witnessed. The will was later lodged with the solicitors for safekeeping, and the claimant was told that the wills were in order.

Mr Fahy died intestate. The claimant alleged that the solicitors negligently failed to identify the defects and advise that the will be properly executed. The central issues were whether the solicitors owed and breached duties to the testator and beneficiary, whether Mr Fahy intended to execute the will, whether that intention continued, and whether the defects caused the claimant’s loss.

1. Duty and breach. The principles in Ross v Caunters [1980] Ch. 297 and White v Jones [1995] 2 A.C. 207 establish that a solicitor preparing a will may owe duties to the testator and intended beneficiaries to ensure, so far as reasonably possible, that the testator’s intentions are given effect.
2. On the facts, the retainer required the defendants to check the will when returned for safekeeping. The document’s face revealed both the absence of the testator’s signature and the unorthodox attestation. The court followed the approach of Lloyd J in Gray v Richards Butler (unreported, 24 June 1997). Failure to identify and explain those defects was negligent. The duty was additionally assumed when the solicitors checked the wills and represented that they were in order, even if the check was performed by a secretary.
3. The claimant established that Mr Fahy intended to sign the will and had accidentally failed to do so. His testamentary intention continued despite the later breakdown of the relationship. A continuing intention until death was not an axiomatic requirement. Gibbons v Nelsons [2000] PNLR 734 was explained as addressing causation and possible changes of intention, not establishing an independent universal requirement. The reasoning in Hemmens v Wilson Browne [1995] 223, an inter vivos case, did not govern testamentary claims.
4. The causation argument based on South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191 did not apply. Proper advice would have addressed both defects and would have resulted in valid execution. The defendants therefore breached duties owed to Mr Fahy and Mrs Deller and were liable for the loss of the inheritance. Damages were to be agreed or subsequently determined.

First instance decision. No appellate history is stated in the judgment.