It was reported recently that solicitor Robert Ian Cartmell had been struck off the roll for dishonesty. He persuaded employees on numerous occasions to sign documents, including Wills, as a witness either after the departure of the client from the office or upon his return, when a document had been signed off-site.
His ‘defence’ included the incredible claim that he had explained to his clients that he would ask his secretary to sign as if it had taken place in the office and that his intention was only to help his clients, not to deceive them; the documents were ‘ostensibly valid’ as they accurately reflected his client’s wishes. This is a hopeless assertion: his client’s wishes must be taken to have included a desire that the document in question be legally valid.
Some of the consequences can be easily remedied. A property transfer or invalid Will can be re-executed correctly. But what of those cases where a testator has died, perhaps years ago, and the estate been distributed on the assumption of a valid Will that was, it is subsequently shown, not validly executed?
The Wills Act 1837 provides that no Will shall be valid unless the testator’s signature is made or acknowledged in the presence of two or more witnesses present at the same time. Each witness must then sign the Will in the presence of the testator (though, interestingly, not necessarily in the presence of the other witness).
What this means, in practice, is that each witness must be with the testator when he signs the Will or acknowledges his signature. Most often, all three are together throughout. The reasons for this are obvious and there is no discretion; if the formal requirements are breached the Will is invalid, notwithstanding evidence that it clearly represented the testator’s dying wishes.
There will, no doubt, be investigations into many Wills prepared by Mr Cartmell, including some in the distant past. Living testators will be asked to consider re-executing their Wills to avoid any possible doubt. Probated Wills, prepared by Mr Cartmell, going back many years will have to be looked at, witnesses contacted, ‘revoked’ Wills resurrected, the default intestacy rules brought into play, beneficiaries informed, solicitors instructed, letters of claim sent, insurance companies notified….
Who will ultimately carry the can? Mr Cartmell will probably face bankruptcy but, assuming that doesn’t pay all the possible claims, his professional indemnity insurers will inevitably pick up the tab. They may try to recover legacies ‘wrongly’ paid but much of the money will have been spent by people who inherited in good faith.
And who can sue? The contract was between the testator (now deceased) and Mr Cartmell’s firm. In any event, the deceased’s estate has suffered no ‘loss’ entitling it to claim. The loss is suffered by beneficiaries whose provision depended entirely upon an invalid Will, then faced with losing it. Some would have benefitted under a prior Will or the default intestacy laws, but others not.
Fortunately for them, the 1995 House of Lords decision in White v Jones rides to the rescue.
The essential facts are very simple. Mr Barratt, aged 78 and recently widowed, had two daughters. He and his daughters had a trivial but explosive falling out which resulted in Mr Barret making a Will – his first – on 4 March 1986, excluding them from benefitting from his estate. By mid-June the estrangement was over and, in a letter received by them on 17 July, Mr Barratt instructed his solicitors in clear terms as to the new one, including that he wished to leave his daughters each £9,000 and that he had destroyed his copy – unfortunately not the original – of the March Will.
Had he possessed, and destroyed, the original, not having a prior Will, the destruction would have constituted a revocation, leaving him intestate and his daughters the beneficiaries under the default intestacy rules.
The solicitors did nothing for a month. Appointments to visit Mr Barratt were missed. An internal memorandum instructing the preparation of the new Will was dictated on 16 August but not typed until 5 September. Both the relevant solicitor and Mr Barratt went on holiday and, shortly after his return. Mr Barratt had a heart attack and died on 14 September, three days before an appointment to see his solicitors was due to take place. The March 1986 Will, being validly executed and being the last Will of the deceased, was admitted to probate. Mr Barratt’s daughters blamed his solicitors for their inexcusable delay in arranging for their father to make his new Will leaving them without their £9,000 inheritance.
The case presented a number of legal questions: how can solicitors be liable to beneficiaries, with whom they had no contract, while carrying out a service for the testator, for what was not so much a ‘loss’ as the failure to derive a benefit the testator had voluntarily chosen to bestow? Even if that could be overcome, how could the solicitors be liable for negligence based upon doing nothing? There was no negligently prepared Will; the solicitors simply did nothing at all for a period of time, with the result that the testator died before his new testamentary intentions could be implemented in place of the old. As a general rule, there is no liability for negligence for an omission to act unless there is a contractual duty – for example, as an employed lifeguard obliged to save a struggling swimmer.
The House of Lords ultimately circumvented all legal obstacles and made it clear that there was no option but to fashion a clear remedy.
As Lord Goff said: Let me emphasise that I can see no injustice in imposing liability upon a negligent solicitor in a case such as the present where, in the absence of a remedy in this form, neither the testator’s estate nor the disappointed beneficiary will have a claim for the loss caused by his negligence. This is the injustice which, in my opinion, the judges of this country should address by recognising that cases such as these call for an appropriate remedy, and that the common law is not so sterile as to be incapable of supplying that remedy when it is required.
The decision was, and remains, very important and will permit those who lost out as a result of Mr Cartmell’s dishonest – but also negligent – conduct of his clients’ affairs to recover what his clients wished them to have, albeit not from the estate itself