Sifri v Clough & Anor

A solicitor’s negligent preparation of a will may make the reasonably foreseeable costs of challenging it recoverable. Recovery is limited to costs caused by the negligence and does not extend to wholly unreasonable grounds of challenge. Where part of a probate claim succeeds, the recoverable costs must be assessed by reference to the work reasonably attributable to that issue.

Foreseeability of delay in administering an estate is insufficient to establish liability for consequential losses. The claimant must prove that the particular loss was caused by the admitted negligence. Losses arising from a failure to protect estate assets pending a probate dispute may involve a separate duty and do not necessarily arise from negligent preparation of the will.

The claimant, the daughter of the deceased, brought a professional negligence claim against the defendant solicitors. The claim followed a probate action in which the deceased’s 1999 and 2000 wills were declared invalid for want of knowledge and approval, while allegations of undue influence, lack of testamentary capacity and lack of due execution were dismissed.

The defendants admitted liability for negligent preparation of the wills but disputed liability for losses claimed. The claimant sought the costs of the probate action and losses said to result from delay in administering the estate. The issues were whether those losses were foreseeable, caused by the admitted negligence, and recoverable in full or in part.

1. Costs of the probate action. It was reasonably foreseeable that failure to take instructions from the testator, taking instructions from a third party, failing to check those instructions and failing to keep a proper note could lead to a challenge to the resulting wills. The costs of such a challenge could therefore constitute recoverable damage.
2. The claimant could not recover costs incurred in pursuing wholly unreasonable claims based on undue influence and lack of testamentary capacity. Those claims had not been shown to result from the solicitors’ breach. By contrast, the want of knowledge and approval claim succeeded because of the breach, and some costs were recoverable.
3. The recoverable costs were to be assessed by making the best estimate on the evidence of the standard-basis costs attributable to the relevant issue. The court allowed £40,000 as the starting figure, assessed it at 90 per cent, and awarded 40 per cent, producing £14,400.
4. Delay losses. It was foreseeable that negligent preparation of wills might delay administration and that some loss might result. However, the claimant had not proved that the claimed losses were caused by the admitted negligence. Losses associated with failing to obtain protective measures, such as an interim receiver or administrator, might instead arise from a separate failure to advise on protecting the estate. That negligence was not admitted and had not been pursued.
5. The claim for delay-related losses was rejected. Judgment was entered for the claimant for £14,400 plus interest.

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