Is loss of opportunity actionable?

Our client E was executor of the Will and principal carer for T. On being informed by T’s doctors she had weeks to live E contacted T’s solicitors who confirmed they had the Will. After death E made an appointment to collect the Will, only to be told although the computer record showed the Will was being held it had in fact been destroyed by T some six months earlier! T had called into the office and asked to see her Will, on being told she would need to produce ID she got very annoyed and left. On her return she produced the ID, took possession of the Will and, saying “this is my Will and I can do what I like with it” tore it into pieces in Reception. This was apparently recorded on the paper file, but not the Wills Register.

Are there grounds of action for negligent advice to E if this caused loss of opportunity for T to consider her actions, including that under intestacy a nephew she allegedly despised would take half of her estate, instead of the half-sister who took under the Will?

Iain Cameron
Star Legal

What is the extent of the solicitors duty of care in respect of a client who has made a will? It is generally accepted that the duty continues up to the completion of the will in accordance with the client’s instructions. If the firm also undertakes storage there is a continuing duty in respect of that, and I would accept that the White v Jones principle extends so that the beneficiaries of the will have the benefit of the firm’s custodian duty. However, T terminated that duty when she withdrew the will from storage.

I think it’s doubtful that there was, at the time of E’s enquiry, any continuing duty of care; indeed there are strong reasons for saying that the firm should not have given any information to E while T was alive, although if for example E was appointed by T in a EPA or LPA I would accept that E had a right to enquire and be told as to the whereabouts of a will.

If the solicitors did respond, in breach of their duty of confidentiality, do they incur any liability if the information is inaccurate? Taken in isolation I would say yes, but I imagine that there is a good deal of authority on the subject.

There is another aspect to this. Is there any evidence that T, in destroying the will, actually wished to revoke it? Was she for example planning to instruct another firm? Or was she just making a point to a firm which had annoyed her? And is there anything (apart from her behaviour) to call into question her capacity at the time to revoke her will?

Tim Gibbons

The firm have conceded in principle that it is arguable White v Jones “must extend to the circumstances of destruction of a Will”. I hope there is case law on this issue, but would be grateful for any suggestions from forum members on this. It appears she was just making a point to the solicitors and her capacity was fine at that point. T told her half-sister on several occasions after destroying the Will that she had made the house over to her, so appeared to believe the copy she had at her house was sufficient to show intent.

Did the solicitors have a duty to advise an elderly, angry, client about the consequences of her actions?

Iain Cameron
Star Legal

I’m sure this has been considered already, but is it clear that T actually had animus revocandi when she tore up the Will?

Carol McBride
Hugh Jones Solicitors

If T did say “this is my Will and I can do what I like with it” I would have thought that that is evidence to suggest she did have animus revocandi. If so, can the solicitors have any duty to the beneficiaries under the Will as the Will had been validly revoked by T?

I would hate to think that the principle in White v Jones would cover this sort of circumstance, but given that solicitors have insurance, I can foresee a situation where the courts may extend the remit of White v Jones to assist a disappointed beneficiary!

Sarah Arundel
Taylor Fawcett

It is worth bearing in mind that the House of Lords only found for the disappointed beneficiaries in White v Jones by a 3:2 majority. While the wide general principle could be extended into numerous areas, all of the sitting Lords were nervous about an extension of the duty of care and the majority appear to have comforted themselves by the simple facts of the particular case. Per Lord Goff:

In the present case Nicholls V-C observed that, in cases of this kind, liability is not to an indeterminate class, but to the particular beneficiary or beneficiaries whom the client intended to benefit through the particular will.

Per Browne-Wilkinson:

I would hold that by accepting instructions to draw a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered.

This is far beyond these limited circumstances as the solicitors had no instructions (so arguably no duty to anybody), they would have no way of knowing who the potential beneficiaries were (so cannot be said to have accepted a duty of care to them) and any claim would have to be on the footing that the testator would have wanted to make a will benefitting the very individuals who took under the will she destroyed. In the absence of any other evidence, her final act directly contradicted this intent.

I would not like to argue that a solicitor has a duty to chase an angry (former) client down the street to explain the consequences of their acts, particularly here. The fact that tearing up a will has legal consequences is not a technical point beyond the wit of the layman.

Andrew Goodman
Osborne Clarke LLP

I agree with all Andrew Goodman says, until his final point: “The fact that tearing up a will has legal consequences is not a technical point beyond the wit of the layman”.

Many lay people have little understanding of the effect of what they do to, or with, a will. If a testator destroys their will in a “huff” what is the intended outcome – to die intestate, to revive a former will, or merely to encourage themselves to make a new will? The range of possibilities may depend upon one’s imagination. It may even be that the balance of their mind was temporarily disturbed - we might not know what else may have been happening in their life.

If the testator can be shown not to have properly understood the consequences of their action, the remedy of dependent relative revocation may be available to anyone seeking to enforce the terms of all or part of the destroyed will.

I recall, many years ago, being told by a member of the Chancery Bar that if the Public properly understood the rules on will making, at least half the members of the Chancery Bar would be redundant. Despite the explosion of “knowledge” available via the internet, I am not sure there has been much change.

Paul Saunders

That is most helpful Paul and, I think, right on the point. Do you have any cases where dependent relative revocation was applied?

Iain Cameron

There are few cases reported under the head of dependent relative revocation (or, as a number of textbooks construe it - Conditional Revocation) principally, I suspect, as the factors are more often subsumed into a wider probate action and, whilst they help inform the eventual outcome, are not flagged as an issue giving rise to a separate head of claim.

DRR will most obviously apply where there is no revocation clause in a (later) will. In other cases, unless one has knowledge of the circumstances and background of a particular testator, and are aware of the principles underlying DRR, the potential for a claim may not be readily identified.

A few years ago a Caribbean court (Jamaica?) held that a will made in that jurisdiction and which, on its face, revoked all previous wills and dealt with the testator’s world-wide estate, was meant to be limited to the estate in that jurisdiction only, applying DRR. This enable the existing English will to be proved and govern the disposition of the remainder of the estate, which represented the greater part of the testator’s wealth. I believe there has subsequently been an English case with similar facts reported (as a reminder of the existence of this longstanding principle?).

Paul Saunders