denotes premium content | Jan 9 2009 Feature
posted 1 Mar 1999 in Volume 4 Issue 3
Case reports
Walker v Geo. H Medlicott & Son (The Times 25 Nov
1998)
An action was brought
unsuccessfully for a negligence claim against a will draughtsman who failed to
include in the testatrix's Will a specific device of the house to the plaintiff.
The case had now been heard by the Court of Appeal. It was made clear by Nourse
LJ that there was insufficient evidence for the claim of negligence to succeed
but, more importantly, this was a situation where the remedy of rectification of
the Will under Section 20 of the Administration of Justice Act 1982 was
available on the basis that the Will, as executed, failed to give effect to the
intentions of the testatrix by reason either of a clerical error or a failure to
understand her intentions.
The point was made, however, that the
plaintiff should have considered the remedy of rectification before claiming
negligence and that he had therefore failed to mitigate his damages.
The case distinguishes
Ross v Caunters (where the Will was incorrectly attested), White v
Jones (where there was delay in preparing the Will) and Carr-Glynn v
Frearsons (failure to severe a joint tenancy).
Watson Deceased (The Times 31
December 1998) Law Society Gazette 96-04 27 January 1999
The plaintiff & W
formed an attachment in 1964 and co-habited in W's house from 1985 until W's
death in 1995. During the period of co-habitation the couple did not have sexual
relations. During the relationship W had provided most of the income for the
running of the house and the plaintiff took charge of the domestic chores. It
was agreed between them, however, that the plaintiff would contribute towards
half of the outgoings.
W died intestate without any surviving family and the plaintiff brought
a claim for reasonable financial provision under Section 1(1A) of the
Inheritance (Provision for Family and Dependants) Act 1975 (as introduced by
Section 2(3) of the Law Reform (Succession) 1995 which permitted a new category
of claim for a co-habitant who had been living as the husband or wife of the
deceased for the whole of a period before the date of death).
The claim was allowed,
Neuberger LJ held that there was no guidance given by the Act as to whether the
Court should be concerned with the external appearance of a relationship or its
internal nature. The Judge also added that, whilst both elements were relevant,
the internal nature was the more important: the test for the Court was to ask
itself whether, in the opinion of a reasonable person, it could be said that two
people were living together as husband and wife. In asking that question the
multifarious nature of marital relations should not be ignored. It would be
wrong to conclude, Neuberger LJ continued, that being a couple satisfied the
test simply because their relationship was one which husband and wife could
have, as then virtually every relationship between a man and a woman in the same
household would fall within Section 1(1A).
Imray Hughes (deceased) 1999
(Court of Protection - reported on the Internet)
The case dealt with the execution of a
Statutory Will on behalf of a patient of the Court of Protection. The solicitor
who submitted the executed Will to the Court for sealing failed to sign the
document certifying that the Will was a copy of the draft settled and approved
by the Court. The Court subsequently returned the Statutory Will to the
solicitor without sealing it and the testator died without the Will having been
sealed by the Court of Protection. Subsequently the Court of Protection
re-sealed the Will eight days after the testator's death, after the solicitors
had supplied the appropriate documentation.
The respondents in the case argued
that the jurisdiction of the Court of Protection had come to an end on the
testator's death, after the solicitors had supplied the appropriate
documentation.
The respondents in the case argued that the jurisdiction of the Court of
Protection had come to an end on the testator's death, however, the Chancery
Division of the High Court rejected that argument and held that the requirement
for the sealing of statutory wills under Rule 93 Court of Protection Rules 1994
was of purely evidential concern.
By sealing the Will the Court of
Protection had fulfilled the administerial role of ensuring that the Statutory
Will conformed to its authorisation and the Court held that this could happen
equally after as before the death of the testator. It was therefore held that
there was no express requirement for the Will to be sealed during the testator's
lifetime.
Julia Abrey. The author is a Partner at Withers
Evans v
Westcombe
The plaintiff and defendant were the children of the deceased who had
died intestate. Letters of administration were granted to the defendant; subject
to administration the defendant held the deceased's estate upon the statutory
trusts for the deceased's issue by operation of S46 (1)(ii) of the
Administration of Estates Act 1925. The defendant had not seen or heard from the
plaintiff since 1962 and when the estate was distributed in 1990, the plaintiff
was assumed to have died. A missing beneficiary insurance policy was taken out
in a sum equal to approximately half the value of the estate. Following
distribution the plaintiff claimed, inter alia, that the cost of the missing
beneficiary insurance premium was not an expense of the administration.
Richard McCombe QC held
that recourse to insurance was not to be restricted to cases in which the PR was
not beneficially entitled to part of the estate and administrators of small
estates should not be discouraged from seeking practical solutions to difficult
administration problems without allowing sizeable sums to be tied up
indefinitely for fear of the re-emergence of a long lost beneficiary or
incurring the expense of having recourse to the court; that missing beneficiary
indemnity insurance offered a fund to meet the claim of the beneficiary in
exoneration of the PR and/or overpaid beneficiary; and that, accordingly the
modest cost of the premium was proper expense of the administration. Law Society
Gazette
Horsfall and another v Haywards
Owing to the solicitors' negligence in
drafting his will, the testator's house, which he intended to leave in trust for
his widow for life with the remainder to the two plaintiffs, his nieces, became
instead the widow's absolutely on his death. The plaintiffs did not become aware
of the error until it was too late: by then the widow had sold the house and
gone to live in Canada, taking the proceeds with her. On the plaintiffs' claim
for damages, the solicitors admitted negligence but contended, inter alia, that
the plaintiffs ought to have mitigated their loss by first applying for
rectification under s.20 of the Administration of Justice Act 1982. The judge
rejected that and other defences and awarded the plaintiffs damages representing
the value of the beneficial interest in the house.
In dismissing the solicitors appeal it
was held that an injured party was only required to take steps to mitigate his
loss as were reasonable; and that while in the case of allegedly negligent
drafting of a will the courts could reasonably expect the plaintiff to mitigate
his loss by bringing rectification proceedings and to exhaust that remedy before
suing the solicitor, he was not obliged so to do if, as was the case here, there
was no prospect of the rectification proceedings resulting in material recovery
of the funds lost. Law Society Gazette
