Will drafting and execution: some cases to remember.

Feature

posted 1 Nov 1999 in Volume 5 Issue 1

Will drafting and execution: some cases to remember.

There have been a spate of cases on Wills recently which it will repay the busy practitioner to study carefully. Some relate to the negligence of solicitors in preparing the Will and ensuring it is executed properly. Others concern the enforceability of Wills against disappointed beneficiaries. This article is merely a brief summary of a few recent cases.

Solicitor's duty of care

The cases of White -v- Jones [1995] and Ross -v- Caunters [1980] established the principle that a disappointed beneficiary can recover damages in negligence for failing to check the execution of a Will or for delay in preparation of a Will. This is an exception to the general rule that the solicitor's sole duty is to his client the deceased. However, how far are the Courts now prepared to go? The case of Carr-Glynn -v- Frearsons [1998] suggests that in relation to Wills this duty of care can in fact be very extensive.

In this case the deceased T owned a property as joint tenants in equity. She made a new Will leaving her half share to her niece rather than to the other joint tenant. The solicitor advised T on the necessity to sever the joint tenancy and asked whether she wished the solicitor to get the deeds from the bank. T agreed to check the deeds herself and the solicitor had no instructions to act further.

When T died, the property passed under the joint tenancy to the surviving joint tenant and the niece, who would otherwise have benefited under the Will, sued the solicitor for breach of duty of care to her as an intended beneficiary, for failing to ensure that the joint tenancy was severed and failing to give effect to the deceased's wishes.

Although at first instance it was held there was no duty of care to an intended beneficiary whose gift was ineffective and even if there had been a duty the facts did not establish a breach, this was reversed in the Court of Appeal; the solicitor did owe a duty to the beneficiary to ensure that the deceased's interest in the property should pass to the beneficiary under the Will and not to the surviving joint tenant. This decision was despite the fact that the client was well aware of the exact position and had decided not to give instructions to send a notice of severance to the other joint tenant. Should solicitors now do work against the client's wishes and for which they will not be paid? This seems to be taking the duty of care to new heights.

Esterhuizen -v- Allied Dunbar Assurance 1998/99 places further burdens on the Will-maker in relation to the execution of future Wills. Mrs Esterhuizen and her daughter sued Allied Dunbar alleging negligence in connection with the Will making service which Allied Dunbar provided to the deceased. The Will was prepared by Allied Dunbar and left the entire estate to the plaintiff. However, there was only one witness for his signature and the Will was therefore invalid. The entire estate passed on intestacy to the deceased's adopted daughter with whom he was not close.

Although the defendants had visited the deceased with written instructions that two witnesses were necessary, it was held that the defendant owed a duty to take reasonable steps to assist a client in the execution of his Will and therefore either to invite the client to his office to execute the Will or visit the client's home with another member of staff. It was held that the decision in White -v- Jones regarding duty of care did not apply just to solicitors but also to any institution which offered a Will making service. Further there had been negligence. The Judge held 'it is not in my judgement not enough just to leave written instructions and to do no more is not only contrary to good practice but also in my view negligent'. This case may be contrasted with Gray & Others -v- Richards Butler (the firm) Chancery Division June 1997 where despite the lack of proper execution the solicitor was held not to be in breach of his duty of care. It was not cited in Esterhuizen.

There have been several cases about the remedies available to disappointed beneficiaries where there has been negligence by the solicitor. In Horsfall & A N Other -v- Haywards [1999] the deceased had wanted to leave the house to his wife for life with the remainder to his nieces. In fact, the solicitors drew up a Will leaving the house to the wife absolutely. On the husband's death the house was sold and the sale proceeds paid to the wife. The nieces issued a writ for negligence. Although the solicitors admitted negligence in drafting the Will they contended the nieces could not claim because they had failed to mitigate their damages by seeking rectification. It was held by the Court of Appeal that rectification proceedings would not, in this case, have resulted in any material recovery of funds for the nieces and damages of effectively the value of the house were ordered against the solicitors.

Cases relating to the administration of the estate or interpretation of the Will

In the estate of Marjorie Cameron deceased, 2 April 1999 is interesting not only in terms of the doctrine of ademption but also because it was a case where gifts were made under a power of attorney. In 1974 Mrs Cameron made a Will dividing her estate equally between her 4 sons. She also granted an unrestricted enduring power of attorney to 3 of her sons. After the making of her Will the attorneys established an educational trust for the minor child of the 4th son who was not an attorney and did not know of the establishment of the trust. The attorneys intended that provision made by the educational trust for Mrs Cameron's grandson would be taken into account against the fourth son's share of Mrs Cameron's share.

It was held that the lifetime gift to the son's child could be fairly seen as intended for the substantial benefit of her son. As a result the rule against double portions applied to adeem in part the son's share in Mrs Cameron's estate. It was also held that the lifetime gift to an educational trust for the benefit of the grandchild was a valid exercise of the attorneys' powers of the EPA.

Evans -v- Westcombe [1999] is a comforting decision where there are missing beneficiaries. Mr Evans and Mrs Westcombe were the children of the deceased who had died intestate. The brother and sister had not seen each other for almost 30 years. Letters of Administration were granted to Mrs Westcombe. She believed that her brother had died and had, on the advice of solicitors, taken out a missing beneficiary insurance policy and distributed the entire estate to herself. The policy was for a sum equal to half the value of the estate. Four years later, Mr Evans emerged to claim his inheritance.

The claim by Mr Evans that the cost of the insurance premium was not an expense on the administration of the estate was rejected. The Judge emphasised that executors particularly of small estates should not be discouraged from seeking practical solutions to difficult administration problems without going to Court or keeping large reserves indefinitely. At the time of Mr Evans' reappearance after distribution of the estate, Mrs Westcombe had spent most of the money and the only remaining asset was the house. Mrs Westcombe's claim on the insurance policy enabled her to pay Mr Evans half the value of the estate. Mr Evans claimed compound interest on his share but Mrs Westcombe claimed relief under s61 Trustee Act 1925 to relieve her for liability for breach of trust. The Court did have power to relieve her wholly or in part from the liability to pay interest.

Disappointed beneficiaries.

What rights do beneficiaries have if they have been promised something under a Will and it fails to materialise?

Taylor -v- Dickens 1998 provides scant comfort for the potential beneficiary. From 1974 onwards the plaintiff worked for Mr and Mrs Parker as a gardener at their home. In 1984 Mr Parker died but Mrs Parker continued to live at the house and continued to employ the plaintiff. Mrs Parker told Mr Taylor she was going to give the house to him upon which announcement the plaintiff said he would not accept payment for any future work. On 6 September 1991 she executed a Will leaving her residuary estate to the plaintiff absolutely.

However, her health deteriorated and an agency sent a care worker to help her. In January 1995 Mrs Parker executed a new Will leaving the house to Mrs Bosher, the care worker and to Mrs B's husband in equal shares. Mr Taylor was not informed of the changes to the Will and continued to work for Mrs Parker without remuneration until her death later that year.

It was held that it was not sufficient for Mr Taylor to believe he was going to be given a right over the house if he knew the testatrix had reserved the right to change her mind. Therefore he had to show that the testatrix created or encouraged a belief that she would not so exercise that right. In other words the difference is between the promise of mere expectation and a concrete promise of property in the future. Gillett -v- Holt [1998] is further authority for the fact that the plaintiff must show words or conduct by the testator which go beyond mere statements of intention and which amount to an irrevocable promise as to how the estate will be disposed of.

Domicile

Finally there was a relatively rare case on domicile recently in Bheekhun -v- Williams and Stafford 1998/99 . The deceased was born in 1931 in Mauritius. In 1956 he married the respondent. In 1960 he came to England to find work. In 1961 he was joined in England by the respondent and in 1968 he purchased a property in London as the matrimonial home. In 1972 they moved to another property. In the meantime Mauritius had become independent and the deceased chose to retain British nationality rather than taking Mauritian citizenship. However the deceased later acquired a Mauritian passport. In 1975 the deceased and the respondent split up and she commenced divorce proceedings, although these were not made absolute prior to the deceased's death.

The deceased's niece moved into the house after the respondent left the deceased and remained there until his death. In 1987 the deceased made a Will leaving all his property to his niece. In 1991 he made a Will in Mauritius leaving all his property again to the niece. He acquired a number of properties in Mauritius but most of these were given away or sold prior to his death.

The respondent commenced action under the 1975 Act claiming financial provision. The 1975 Act could not of course be invoked if the deceased was not domiciled here. It was held that the deceased had acquired a domicile of choice when he decided to retain his British nationality. Further, the property in Mauritius could be taken into account as part of the deceased's net estate when assessing claims. This is a somewhat odd decision which seems to give undue weight to the deceased's intention to retain his British nationality - a factor which is usually regarded as of limited relevance to the issue of domicile. The fact that he had significant property interests in Mauritius was not regarded as important.

With all these cases on Wills, negligence and possible claims by disgruntled beneficiaries, it is surprising that any practitioner wants to draft a Will at all nowadays! One message seems clear: always keep detailed attendance notes and confirm everything in writing to the client.

Emma Chamberlain is a barrister at 8 Gray's Inn Square and can be contacted on 0171 242 3529