Carr-Glyn v Frearsons (A Firm)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LORD JUSTICE THORPE,LADY JUSTICE BUTLER-SLOSS |
| Judgment Date | 29 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0729-16 |
| Docket Number | CHANF 97/0181/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1998 |
[1998] EWCA Civ J0729-16
Lady Justice Butler-Sloss
Lord Justice Thorpe
Lord Justice Chadwick
CHANF 97/0181/3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE LLOYD)
Royal Courts of Justice
Strand
London WC2
MR G ZELIN (Instructed by Wannop & Fox, 30305 Chichester South Pallant House, Chichester, West Sussex (London Agents: Kingsford Stacey, London, WC2A 3UB) appeared on behalf of the Appellant
MR GUY MANSFIELD QC & MR M HUBBARD (Instructed by Browne Jacobson, Nottingham, NG1 7B5) appeared on behalf of the Respondent
The appellant,Mrs Helen Carr-Glynn, is the niece of the late Mrs Nellie Larder ("the testatrix") who died on 11 August 1993. The respondents are a firm of solicitors whom the testatrix instructed to prepare her last will, which she executed on 9 February 1989. By clause 2(b) of that will the testatrix gave to her niece all her share or interest in the property known as "Homelands", Burley, Hampshire. At the time when the will was prepared and executed "Homelands" was held by the testatrix and her nephew, the appellant's brother Mr Peter Burchell, as beneficial joint tenants. The testatrix died without having severed the joint tenancy. On her death the property vested in the surviving joint tenant. Accordingly, the gift in clause 2(b) could not take effect. The share or interest in the property to which the testatrix had been entitled during her lifetime did not form part of her estate. The appellant's expectation as a beneficiary under the 1989 will was disappointed.
The appellant blames the respondents, as the solicitors who prepared the 1989 will, for the loss of her expectation. She asserts, in effect, that it was their responsibility to ensure that she received the benefit which the testatrix intended that she should receive. In the present action she sought damages against the solicitors in respect of their alleged breach of duty. The action was tried before Mr Justice Lloyd. His judgment is reported at [1997] 2 All ER 614. He held that, where a solicitor's breach of his duty of care to a testator in preparing her will resulted in a loss to the estate, the solicitor owed no duty of care to an intended beneficiary under the will whose gift was thereby rendered ineffective. He held, also, that even if such a duty had been owed, the plaintiff had not established on the facts before him that there had been a breach of that duty. By an order made on 17 December 1996 he dismissed the action. The appellant's appeal from that order is now before this Court.
The 1989 will was admitted to probate on 20 September 1993. The Judge found as a fact (i) that, at the time when she executed the 1989 will, the testatrix intended that the appellant should receive a one half share in the property "Homelands" on her death, (ii) that she retained that intention until her death and (iii) that, if she had been advised that it was necessary to serve a notice of severance, she would have done so. Those findings are not challenged by the respondents on this appeal. The Judge found, also, that the manner in which the solicitors had dealt with the matter (through one of their then partners, Miss Turner) was "entirely reasonable and proper". That finding is challenged by the appellant. It is convenient to resolve that issue before examining the questions of law raised by this appeal.
The appellant and her brother are the children of the testatrix's sister Jessie. The Judge found that the testatrix had bought "Homelands" in 1953 as a home for Jessie and the two children. By a deed of gift dated 12 December 1969 and made between the testatrix and her nephew, Peter, the testatrix transferred the property into their joint names to hold as beneficial joint tenants. The defendant firm (but not Miss Turner) acted for the testatrix in the purchase and in the transfer. Miss Turner first acted for the testatrix in the preparation of a will which was executed on 25 October 1983. It seems likely that Miss Turner did not then know of the deed of gift. By clause 2(b) of the 1983 will the testatrix left "my property known as 'Homelands' to Peter. By clause 2(c) of the 1983 will the testatrix gave to her niece, the appellant, all monies standing to the credit of any deposit account in her name at the Skegness Branch of Barclays Bank.
The testatrix came in to see Miss Turner by appointment on 2 February 1989. She gave instructions for the preparation of a new will, which Miss Turner noted by reference to the existing clauses in the 1983 will:
2(b) Mrs N now has only 1/2 share of "Homelands" and wants to leave this to niece HELEN CARR GLYN
(c) nephew Frank Newbitt [address] to have Barclays A/c
She noted, also, that the firm had acted on the transfer of "Homelands". The effect of the instructions was that the appellant was to have the half share in the property instead of the bank accounts.
Miss Turner prepared the draft will in accordance with the instructions which she had been given. She wrote to the testatrix on 6 February 1989, inviting her to call in so that the will could be executed. The letter includes the following paragraph:
However, I must mention that I am not entirely sure that the gift of your share or interest in the property at Burley to your niece will be effective. When I checked our records I found that we no longer have our file relating to this matter and the deeds were sent to the National Westminster Bank in March 1970. From the records which we still have I can confirm that the property is in the joint names of yourself and your nephew but there are two forms of joint ownership. One of these would leave you free to dispose of your own half share of the property in your Will but the other would have the effect that, on your death, your share would automatically pass to your nephew. If you wish me to obtain the deeds and check the position then please let me know and I will prepare the appropriate authority for you and your nephew to sign. I look forward to hearing from you.
The testatrix came into her solicitors' office on 9 February 1989 without having responded to the suggestion that Miss Turner should check the deeds. She executed her will in the presence of Miss Turner. Miss Turner's attendance note of the visit records:
Mrs L to get deeds so ownership of "Homelands" can be checked. Pointed out nephew's authority would be needed as well as her own.
Following the visit Miss Turner sent the testatrix a copy of the will which she had executed, together with a note of the firm's charges. The original of the 1989 will was placed in the firm's strong room. The covering letter, dated 9 February 1989, did not refer to the doubt as to the efficacy of the gift of the share in "Homelands" or to the need to resolve that doubt. There was no further contact between the testatrix and Miss Turner.
Miss Turner gave evidence at the trial. It is clear from the witness statement which she signed on 15 March 1996 that she had no recollection of the two meetings with the testatrix, which had taken place some seven years earlier, other than what could be deduced from her attendance notes. That is, of course, not at all surprising. After referring to the attendance note of 9 February 1989 Miss Turner said this:
8. From that I deduce that I again told the testatrix that there was doubt over the bequest of her half share in the property, "Homelands", to the Plaintiff and that the simplest thing would be for her to get hold of the deeds or copies of them from the National Westminster Bank.
The Judge made the following finding in relation to the attendance on 9 February 1989, at [1997] 2 All ER 614, 620b-f:
I find that on 9th February 1989 Miss Turner discussed the position as regards joint ownership of "Homelands" with the deceased. The explanation which she gave in her letter of 6th February as to the two types of joint ownership is reasonably clear as to the difference, I find that she reiterated this explanation, but also that she mentioned that, if it was indeed a joint tenancy, it would be possible to change that position so that a half share could pass under the will. I do not suppose that she went into much in the way of detail as regards the process of severance, but I find that she told the deceased that it could be done simply by a letter being written to Peter Burchell. I find that she again offered to get the deeds from the bank as she had done in the letter, but the deceased decided she would do that herself. The deceased was an intelligent woman with experience of business who knew her own mind. It seems to me that she was perfectly capable of taking and following up such a decision for herself…
Miss Turner did not suggest to the deceased that a notice of severance could be sent anyway, nor did she put a suitable form of letter before the deceased for her to consider signing. I find that Miss Turner did not advise that Peter Burchell's co-operation was necessary to change the position as regards the joint tenancy, but that she did say his consent would be needed to get the deeds from the bank. She did not make a diary note to remind the deceased about the position if she heard no further news from the deceased within any given time.
The allegations of negligence on which the appellant relied in support of her claim may be summarised as follows: (i) that Miss Turner failed to take whatever steps were necessary to ascertain whether or not the property was held in beneficial joint tenancy before inviting the testatrix to sign the 1989 will; (ii) that,...
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