Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again

DOIhttp://doi.org/10.1111/1468-2230.00384
Publication Date01 May 2002
AuthorEoin O’Dell
Restitution, Rectification, and Mitigation: Negligent
Solicitors and Wills, Again
Eoin O’Dell*
A solicitor, when drafting a will, can owe a duty of care in tort to the intended
beneficiary of a bequest under that will. The Court of Appeal has recently
confirmed that where a solicitor has misdrafted the will, the intended beneficiary
can sometimes rectify it, and recover the intended gift. The pattern of this
rectification is restitutionary, raising the question analysed in this article of
whether an intended beneficiary can have a direct personal action in restitution to
reverse the unjust enrichment of an unintended recipient. It seems that, though
fraught, such an action may indeed in principle lie.
Many people retain the services of a solicitor to draw up a will. It should be one of
the less fraught occasions upon which they visit their solicitor. If all goes according
to plan, the beneficiaries intended by them will inherit under the will. If, however,
the solicitor is negligent, and the will is invalid or miscast, then some or all of the
estate can go to an unintended recipient or recipients. In such circumstances, apart
from the estate’s action for breach of contract against the negligent solicitor, the
decision of the House of Lords in White vJones1confirms that the solicitor can
also owe a duty of care in tort to the intended beneficiary.
In White vJones, the solicitor’s negligence meant that there was no will. Where,
however, the negligence results merely in a miscast will rather than in no will at
all, the Court of Appeal in the later Walker vMedlicott2held that the intended
beneficiary can (sometimes) rectify the will and thus, in effect, recover the gift
from the unintended recipient. The pattern of this rectification action is certainly
restitutionary, which raises the question whether, if the will cannot be rectified, or
there is no will as on the facts of White vJones, the unintended recipient would be
unjustly enriched at the expense of the intended beneficiary who could therefore
have a personal claim for restitution.
In seeking to answer that question, the rectification action canvassed in Walker v
Medlicott is put into context in the next section, and other examples of rectification
as a means of restitution are then discussed, so that an unjust enrichment action on
these and similar facts can be developed. The aim of the analysis is not so much to
argue for the proposition that the intended beneficiary does have an action in
restitution against the unintended recipient as to examine the possibility of such an
action; and the conclusion will be that such an action may indeed be available in
ßThe Modern Law Review Limited 2002 (MLR 65:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.360
* Barrister, Lecturer in Law, Trinity College, Dublin. An earlier version was delivered to the Irish
Association of Law Teachers’ Annual Conference, 1 April 2000; thanks to the participants there and to Prof
Allan Axelrod, Steve Hedley, Prof Lionel Smith, Prof Richard Sutton, Prof Stephen Waddams and Dr
Sarah Worthington.
1 [1995] 2 AC 207 (HL); see J. Brady, ‘Solicitors’ Duty of Care in the Drafting of Wills’ (1995) 46
NILQ 434; B. Markesinis, ‘Five Days in the House of Lords: Some Comparative Reflections on White
vJones’ (1995) 3 Torts LJ 169; D. Johnston, ‘Appointments and Disappointments: White vJones in
Rome and Today’ (2000) 53 CLP 283; S. Grattan, Testamentary Negligence (Belfast: SLS, 2000).
principle, though it faces some formidable obstacles which might ultimately prove
insurmountable in practice.
Rectification in Walker vMedlicott
White vJones confirmed that a solicitor who negligently fails to draw up a will can
owe a duty of care in tort to the intended beneficiary. It is a fortiori where a
solicitor negligently draws up a will which turns out to be invalid.3Indeed,
according to the Court of Appeal in Carr-Glynn vFrearsons,4a solicitor who
draws up a valid will, but negligently fails to ensure that the property in the bequest
would be available for distribution under it, can also owe a duty of care in tort to
the intended beneficiary. In that case, the testatrix had been a co-owner of certain
property. When she died, it became clear that she had been a joint tenant of the
property, so that her interest vested in the surviving joint tenant rather than in the
intended beneficiary. Chadwick LJ held that ‘a competent solicitor, acting
reasonably, would have advised the testatrix that, in order to be sure that her
testamentary wishes should have effect, she should serve a notice of severance in
conjunction with the execution of the will’.5Although the solicitor had explained
that if the testatrix were a joint tenant, the tenancy would have to be severed so that
she could have an interest to bequeath to the intended beneficiary, this was not
followed up and no notice of severance was served, and the Court of Appeal held
the solicitor liable in tort to the intended beneficiary.
Furthermore, according to the Court of Appeal in Walker vMedlicott,6a solicitor
who draws up a valid will, but negligently fails to include in it a gift intended by
the testator, can also owe a duty of care in tort to the intended beneficiary. Though
the claim was accepted in principle, it failed on its facts: the judge in the court
below had found that the claimant had not proved negligence against the defendant
solicitor: although the solicitor may have misunderstood the instructions of the
testatrix and thereby have omitted from the will a gift intended by her for the
claimant, it did not follow that such a misunderstanding necessarily constituted
negligence on the part of the solicitor, and the claimant had failed to prove by
3 See eg Ross vCaunters [1980] Ch 297 (ChD; Megarry VC); Wall vHegarty [1980] ILRM 124 (Ir
HC; Barrington J); Gartside vSheffield Young & Ellis [1983] NZLR 37 (NZ CA); Hill vvan Erp
(1996–1997) 188 CLR 159 (HCA). For Canada, see Earl vWilhelm (orse Wilhelm vHickson) (2000)
183 DLR (4th) 45 (Sask CA), noted J. R. McJannet, ‘Wilhelm vHickson: The Canadian Tort
Approach to the Disappointed Beneficiary and the Negligent Solicitor’ (2001) 64 Sask L Rev 113.
4 [1999] Ch 326 (CA); see R. Kerridge and A. H. R. Brierley, ‘Will Making and the Avoidance of
Negligence Claims’ [1999] Conv 399; R. Kerridge and A. H. R. Brierley, ‘Negligence and Conflicts
of Interest in the Will-Making Process’ (1999) 115 LQR 201. cp Makhan vMcCawley (1998) 158
DLR (4th) 164 (Ont HC; Lax J); Earl vWilhelm (2000) 183 DLR (4th) 45 (Sask CA); Corbett vBond
Pearce (2001) 151 NLJ 609 (CA). cf Queensland Art Gallery Board of Trustees vHenderson Trout
[1998] QSC 250; A. Stickley, ‘Consequences if an Intended Beneficiary is Cut Out of a Will:
Potential Liability if a Unilateral Severance is not Fast Enough’ (2000) 20 Qld L 207.
5 [1999] Ch 326, 332. However, such duties do not extend to advising the testator on how to make the
most tax efficient gift to beneficiaries: Cancer Research Campaign vErnest Brown [1998] PNLR 592
(Harman J); J. Murphy, ‘Probate Solicitors, Disappointed Beneficiaries and the Tortious Duty to
Advise on Tax Avoidance’ (1998) 14 PN 107. cp Middleton vSteeds Hudson [1998] 1 FLR 738
(Johnson J). cf Hurlingham Estates vWilde (1997) 1 Lloyd’s Rep. 525 (Lightman J); on which see R.
O’Connor, ‘The Duty of Solicitors to Give Tax Advice: Recent Developments’ (1998) 27 UWALR
195; G. Dal Pont, ‘The Duty of Solicitors to Give Tax Advice – A Reply’ (1999) 28 UWALR 121; R.
O’Connor, ‘The Duty of Solicitors to Give Tax Advice – A Rebuttal of the Reply’ (1999) 28 UWALR
132.
May 2002] Restitution, Rectification, and Mitigation
ßThe Modern Law Review Limited 2002 361

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