Wall v Hegarty

CourtHigh Court
JudgeMr. Justice Barrington
Judgment Date19 June 1980
Neutral Citation1978 WJSC-HC 4100
Docket NumberNo. 2552P/1979
Date19 June 1980

- and -


1978 WJSC-HC 4100

No. 2552P/1979



Judgment of Mr. Justice Barrington delivered the 19th day of June, 1980.


This Case raises a net point of law.


The facts have been admitted on the Pleadings or at the Bar during the course of the hearing. They are as follows:-


The Plaintiff is the Executor named in a purported Will of William Wall, deceased, late of Glanturkin, Whitegate, Co. Cork. The Plaintiff was also a beneficiary named in the said purported Will and was, under its terms, to receive a legacy of £15,000.


The Defendants are a Firm of Solicitors.


In the month of October, 1975, the Defendants took instructions from the said William Wall to draw up his last Will and testament. They duly prepared a draft will and a Solicitor in the Defendants" Firm attended at the testator's residence to have the will executed. The Will was duly executed by the testator and witnessed by the Solicitor referred to. The Solicitor then apparently returned to his Office where, in the absence of the testator, a typist appended her signature to the will, purporting to act as a witness to the execution thereof by the testator.


Later in the same month, the testator wished to alter his Will in a manner not material for the purposes of these proceedings. A codicil was drawn up, executed by the testator, and witnessed by the same Solicitor. Again, there was no second witness to the execution of the will by the testator but, on the Solicitor's return to his Office, the typist purported to sign the will as witness to the testator's signature.


Neither the Will nor the Codicil therefore, was attested as required by Section 78 of the Succession Act 1965.


The testator died without having purported to revoke or alter his said purported Will or Codicil.


After the testator's death, the Defendant Firm sent to the Plaintiff a copy of the said purported Will and Codicil in his capacity as the Executor named therein. The Will and Codicil appeared on their face to be in order but, of course, were, unbeknownst to the Plaintiff, totally invalid.


However, word of the irregularities in the witnessing of the Will and Codicil apparently reached the ears of the testator's next-of-kin. They issued proceedings to have the purported Will condemned, and it was necessary for the Plaintiff to take instructions on the allegations being made by the next-of-kin. The Defendants, when these matters were drawn to their attention, properly admitted that the allegations being made by the next-of-kin were true. The Plaintiff had accordingly no choice but to concur in the Will being condemned.


The testator was apparently a man of some substance. The Plaintiff claims to have suffered the loss of the legacy of £15,000 which he would otherwise have received, and also to have suffered loss in the form of legal costs in getting himself involved in litigation which he would not have got involved in, had not the purported Will been originally represented to him as being a valid document. At the hearing it was decided that I should defer the question of the quantification of the Plaintiff's loss until I had first dealt with the substantial issue of whether a Solicitor retained by a testator to draw up his Will owes any duty to a legatee named in the Will to ensure that the Will and the legacy are Valid.


There is no doubt that he does owe a duty to a testator to show reasonable care and to exercise professional skills appropriate to a Solicitor in ensuring that the testator's wishes are carried out. But if a legacy fails, the testator and his Estate may suffer little or no damage. The legatee may suffer substantial damage but may have no right of action against the Solicitor. The testator's Estate may have a right of action against the Solicitor in contract or in tort, but may be entitled only to nominal Damages.


The Plaintiff, in his Statement of Claim, pleads that a Solicitor retained by a testator to prepare a Will owes a duty to an Executor and beneficiary named in the Will to ensure that the testator's benevolent intentions in respect of the Executor and beneficiary are not frustrated through lack of reasonable care on the part of the Solicitor. At paragraph 7. of the Statement of Claim, he pleads:-

"The Defendants and each of them as Solicitors for William Wall, deceased, were obliged at all material times to conduct the affairs of the deceased in such manner as would ensure and protect the best interests of the Plaintiff as the person named as his Executor by the deceased and as a beneficiary under his said Will and of all persons entitled to benefit from, or concerned with, the Will of the deceased, which said duty the Defendants failed to discharge."


Traditionally, English law did not regard a Solicitor as owing any such duty to a legatee named in a testator's Will and, so far as I am aware, the law of Ireland was no different in this respect.


A passage which appears on page 184 of the 1961 edition of Cordery's "Law relating to Solicitors", puts the matter as follows:-

"Since the Solicitor's duty to his client is based on the Contract of retainer, he owes no duty of care to anyone other than his client, save where he is liable as an Officer of the Court".


The chief authority relied on, in support of that proposition was Robertson -v- Fleming, 4 (4) Macqueen's Reports, page 167. That was a decision of the House of Lords in a Scottish Case. It is arguable that the central question in that Case was whether an issue which had been settled in the Second Division of the Court of Session, properly raised the question of fact in dispute between the parties. But it is also arguable that this question of fact would have been irrelevant if a Solicitor owed a duty, not only to his client, but also to the person for whose benefit his services had been retained. In any event, as Sir Robert Megarry has stated in the recent Case of Ross -v- Caunters, (1979 3 ALL E.R., page 580 (at page 585)), the dicta whether they were of the ratio or not are clearly of high authority.


In that Case, Lord Campbell, L.C., rejected in the strongest possible terms, the suggestion that a Solicitor retained by a testator might owe any duty to a legatee who was a stranger to him.


In a passage which appears at page 177 of the Report, he says:-

"I never had any doubt of the unsoundness of the doctrine, unnecessarily (and I must say, unwisely) contended for by the Respondent's Counsel, that A. employing B., a professional lawyer, to do any acts for the benefit of C., A. having to pay B., and there being no intercourse of any sort between B. and C. - if, through the gross negligence and ignorance of B., in transacting the business, C. loses the benefit intended for him by A., C. may maintain an action against B., and recover Damages for the loss sustained. If this were law, a disappointed legatee might sue the Solicitor employed by a testator to make a Will in favour of a stranger, who the Solicitor never saw or before heard of, if the Will were void for not being properly signed and attested. I am clearly of opinion that this is not the law of Scotland, nor of England, and it can hardly be the law of any country where jurisprudence has been cultivated as a science."


While Lord Campbell was in a minority in other aspects of the Case, it would appear that a majority of his colleagues agreed with him on this point.


However, since Robertson -v- Fleming was decided, there have been two major advances in the law, material to the consideration of the present question. First was the development of negligence as an independent tort and the line of Authority running from Donoghue -v- Stephenson (1932 App. Cas., page 562, 1932 ALL E.R., page 1.) to Hedley Byrne & Co. Ltd. -v- Heller & Partners Ltd.,(1964 App. Cas., page 465; 1963 2 ALL E.R., page 575)....

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