Martin v Triggs Turner Bartons (a firm) & Ors

A solicitor drafting a will owes a duty to secure, so far as intended to benefit the claimant, the testamentary provision instructed by the testator. Where negligent drafting reduces the value of the benefit obtained, loss may arise on the testator’s death; it is not necessarily confined to a loss of a chance. An executor who assumes responsibility for advice may owe a duty based on reasonable reliance, but an executor does not generally owe a duty to advise a beneficiary about the contents of the will. Index-linked returns under National Savings Certificates may constitute income rather than capital, depending on their terms. Trustee relief is unavailable where the relevant conduct was not reasonable.

Dr Martin claimed damages from the solicitors and solicitor-executors involved in drafting and administering her late husband’s will. She alleged that the power of advancement was drafted in the opposite form to that instructed, limiting advances to a specified fraction rather than reserving that amount for charity. She also alleged negligent advice and administration concerning a widow’s pension and National Savings Certificates.

The court determined whether the will reflected the testator’s instructions, whether the drafting error caused actionable loss, whether responsibility had been assumed for pension advice, and whether the index-linked element of the certificates was income or capital.

1. Pre-death drafting negligence. The will failed to give effect to Mr Martin’s intention that the trustees could advance the residue except for the final £100,000. The solicitors therefore breached their duty to draft the will in accordance with his intentions so far as those intentions benefited Dr Martin. The principle in White v Jones [1995] 2 AC 207 applied.
2. Loss and damages. Dr Martin suffered loss from Mr Martin’s death because the benefit conferred by the will was less valuable than the benefit intended. She had lost the trustees’ consideration of requests exceeding the wrongly imposed limit and was placed in a worse position in negotiating a partition with the remaindermen. The claim was not merely for loss of a chance under Allied Maples v Simmons & Simmons [1995] 1 WLR 1602. Damages were assessed at 6.5% of the fund, together with £40,000 for Dr Martin’s rectification costs and £14,600 for the trustees’ costs.
3. Pension advice. Although an executor ordinarily owes no duty to advise a beneficiary about the beneficiary’s own affairs, responsibility may arise where the executor undertakes to investigate and advise in a professional context and reasonable reliance follows. That principle, identified in Cancer Research Campaign v Ernest Brown [1998] PNLR 592; [1997] STC 1425, applied. The defendants’ failure caused the loss of benefits valued at £25,047.
4. National Savings Certificates. On the terms before the court, both interest and index-linking were income returns on a fixed capital investment. The executors were negligent in treating the index-linked element as capital. The approach in In re Holder [1953] Ch 468 was distinguished because the terms of that issue were materially different.
5. Alternative claim and relief. The alternative misapprehension claim would have failed because there was no assumption of responsibility to advise Dr Martin about the contents of the will and the claimed losses were unproved. The reasoning based on Worby v Rosser [2000] PNLR 140 was rejected. Relief under section 61 of the Trustee Act 1925 and the will’s exemption clause was unavailable because the treatment of the National Savings Certificates was not reasonable and the clause did not protect loss suffered by Dr Martin.
6. The pre-death claim and the pension and National Savings claims succeeded. The alternative misapprehension claim failed.