Analysis
The plaintiffs were three of the four children of the deceased, who died in 2015. They contended that the deceased lacked capacity when making wills in 2004. Instructions for the wills had been taken by the defendant, who had prepared them and supervised their execution. Had the wills not been made, the deceased’s estate would have passed to the plaintiffs and their sibling, subject to a life interest in realty for the deceased’s widow; the effect of the wills was to confer on the widow additional benefits. Following the death of the deceased, the plaintiffs and their sibling challenged the validity of the wills on the basis that the deceased had lacked testamentary capacity at the time they were executed. The proceedings that they brought were compromised on terms, including a payment of £375,000 from the deceased’s estate to his widow, but without recovery of their costs.
The plaintiffs then brought proceedings against the defendant, claiming that he owed them a duty as regards the making of the deceased’s wills and, had he not been in breach, the wills would not have been made. They sought damages in respect of the costs of the probate proceedings and of the £375,000 paid to the deceased’s widow. The plaintiffs contended that it had been obvious that the deceased’s testamentary capacity was extremely doubtful at the time the wills were executed, and that these real doubts had been known to the defendant; and that the defendant had had a duty to satisfy himself as to the deceased’s testamentary capacity. The defendant did not dispute that such a duty was owed to the deceased, but he denied that the duty was owed to the plaintiffs.
At first instance, there was a trial of a preliminary issue as to whether the plaintiffs’ claims in the cause disclosed a cause of action against the defendant. For the purposes of the preliminary issue, no evidence was given and the judge assumed the facts in the cause to have been proved. The judge stated that there was no Guernsey authority on the point and that the parties had referred to English and Commonwealth authorities. She held that the defendant did not owe the plaintiffs any duty of care in respect of the making of the deceased’s wills.
There were two different situations:
The first existed where a person should have benefitted from a will but did not, through the failure of a lawyer engaged to make the will (a ‘proposed beneficiary claim’). Such a claim had been successful in England and Commonwealth jurisdictions, on the basis that the remedy for the proposed beneficiary filled a lacuna as to the remedy available to the disappointed beneficiary (White v Jones [1995]).
The second existed where a person had been disadvantaged by a will prepared for a testator of doubtful capacity or no capacity at all (a ‘prior beneficiary claim’). The judge concluded that this was such a case and that there was no lacuna; there was a remedy available against the will-drawing lawyer at the suit of the deceased’s estate for the costs of a probate action.
The judge stated that the incremental extension of the law of negligence was available to cases that satisfied three requirements:
- (1) foreseeability of the relevant economic loss;
- (2) a degree of proximity between plaintiff and defendant to justify a duty of care being owed; and
- (3) that the imposition of a duty would not be unfair, unjust or unreasonable (Caparo Industries plc v Dickman [1990]).
Applying these principles, she decided that a duty of care owed to the plaintiffs was not to be imposed on the defendant.
The plaintiffs appealed to the Court of Appeal.
Held:
The appeal was dismissed.
- (1) The Court of Appeal rejected the plaintiffs’ argument that the question whether the defendant owed the plaintiffs a duty of care could only be resolved at trial after evidence had been heard (JP SPC4 v Royal Bank of Scotland International Ltd [2022] followed).
- (2) As to the consideration of authorities decided in different jurisdictions, Privy Council decisions on appeals from other Commonwealth jurisdictions were not binding, but were persuasive authority on the common law on facts that did not differ markedly from those in the other jurisdictions. English Court of Appeal decisions were to be treated with due respect but were not binding and could be reviewed and departed from if considered wrong or inappropriate (Morton v Paint [1996] followed).
- (3) In a proposed beneficiary claim, the remedy for the proposed beneficiary filled a lacuna, otherwise nothing could be done by either the client’s estate or the intended beneficiary to retrieve the situation for the benefit of the intended beneficiary. The lacuna should be filled by treating the assumption of responsibility by the lawyer to its client as extending to the intended beneficiary, aligning the lawyer’s duty to the testator with the duty of care owed to the intended beneficiary (JP SPC4 followed).
- (4) In a prior beneficiary claim, however, there was no lacuna. There was a remedy available. In this case the disappointed beneficiaries brought a probate claim to prevent a disputed will from being admitted to probate. In a case such as this, where the lawyer was approached to assist with a will for a person of doubtful testamentary capacity, they could properly decide in appropriate circumstances to supervise the execution of the will. Any supposed duties to the disappointed beneficiary might conflict with the primary duty of the lawyer to the proposing testator. The court referred to the English Court of Appeal decision in Worby v Rosser [2000], which was a prior beneficiary claim ‘on all fours with the present case’, stating that, while it was not binding on the court, it was of persuasive authority.
- (5) Without any legal lacuna of the type found in White v Jones [1995] and a close analogy to an existing established duty in terms of purpose and reliance, it would not be fair, just or reasonable to extend the law of negligence in this case.
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