Lorraine Studholm Feltham v Freer Bouskell [15.07.13]

High Court gives obiter view on how loss suffered by a disappointed beneficiary is to be quantified.

The Defendant solicitors were instructed by an elderly client to prepare a new will to include the Claimant as a beneficiary. Because of delays by the Defendant, the Claimant prepared the new will instead - in accordance with the client's instructions to the Defendant.

The client died shortly after executing the new will and its validity was subsequently challenged by the beneficiaries named in her previous will. The Claimant settled the dispute with the beneficiaries and then sued the Defendant for negligently failing to prepare the new will in accordance with the client’s instructions under the principle in White v Jones. The Claimant alleged that, had this been done, the new will would not have been challenged.

Decision

The High Court found in favour of the Claimant and awarded the losses claimed in full as it was sufficiently satisfied on the evidence as to what the client would have done, had the Defendant performed its duty to her. Therefore, the issue of how to evaluate how she would have acted but for the negligence was academic.

However, in its judgment, the High Court addressed the following issue that has yet to be squarely determined: "in a White v Jones case, when the disappointed beneficiary seeks to prove what the testator would have done, had the solicitor performed his retainer, is the testator's hypothetical conduct to be assessed on a balance of probabilities or a loss of a chance"?

In considering this issue, the court referred to the three principles set out in Allied Maples Group v Simmons & Simmons [1995]:

  • Where the loss depends on future uncertain events, the assessment is usually expressed in percentage terms, i.e. the chance of the event occurring.
  • Where loss depends on what the claimant would have done, the claimant must prove on a balance of probabilities that they would have taken the given action/followed advice.
  • Where the loss depends on the hypothetical action of a third party, the claimant has to prove there was a substantial chance, rather than just a speculative one. This is evaluated in percentage terms.

The High Court expressed the obiter view that what a testator would have done is dependant on an assessment of what a third party would have done and, therefore, falls into the third category above.

Comment

The High Court noted that this point is a difficult one which will, in due course, need to be settled by an appellate court. So we wait to see whether loss in a White v Jones case remains to be assessed as a category three issue.

There is also an important practice point. The court acknowledged the good intentions of the Defendant's solicitor and his desire to protect the testatrix, his client. However, if a solicitor has concerns over the instructions he is given, it is critical that he act on them expeditiously. Doing nothing, as was the case here, is likely to amount to negligence, especially where the client is elderly.