The Scottish Outer House, Court of Session has rejected an attempt to extend the scope of White v Jones. In White v Jones the solicitor negligently failed to draw up the testator’s will in favour of the claimant beneficiaries before his death. The House of Lords were unhappy about the lacuna in the law which meant that neither the testator nor the beneficiaries could sue for the loss and extended the solicitor’s duty of care to the beneficiaries to remedy this problem.
In Fraser v McArthur (http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_159.html) the solicitor’s negligent advice pre-dated the will, which was in fact drawn up in accordance with that advice at the testator’s request. The Scottish court was not bound by White v Jones but acknowledged that it was highly persuasive. The judge dismissed the disappointed beneficiaries’ claims, refusing to follow the House of Lords on the ground that the cases concerned very different factual situations. An English court might be expected to take a less restrictive view of White v Jones.