The Will That Was Never Signed
Eileen, aged 78, instructs Sloane & Co to make a will leaving her house at 14 Rowan Terrace to her niece Sinead and the residue to her two sons. The solicitor, Niamh, drafts the will but Eileen dies of a stroke three weeks later, before the signing appointment. Niamh had twice cancelled that appointment because of a trial and had not rearranged it. The draft is unsigned, so under the Succession Act 1965 it has no effect, and the estate passes on intestacy: Sinead receives EUR 20,000 rather than the house, worth EUR 310,000. The house passes to Eileen's sons as next of kin. Sinead sues Sloane & Co in negligence. The firm argues (i) no duty was owed to Sinead, who was not their client; (ii) loss of an inheritance is not recoverable; and (iii) if liable, any award should be heavily discounted because Eileen might have changed her mind or needed the house to fund nursing care. Niamh's file note of the second instruction reads: 'Eileen clear and firm; wants Sinead to have the house'.
1. Does Sloane & Co owe Sinead a duty of care, given that she was not the client?
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The problem. The client, Eileen, has died and the estate has not lost the house in its own right - the loss falls on Sinead. If no duty is owed to her, the solicitor's admitted failure to have the will executed carries no consequence, because the estate's own loss is nominal.
Authority. The Supreme Court and the High Court have accepted that a solicitor instructed to make a will owes a duty of care to an intended beneficiary who is identified by the instructions, even though the beneficiary is not the client. The reasoning is that the solicitor assumes responsibility for the task, the beneficiary is reliant and identifiable, liability is not indeterminate, and denying the duty would leave a lacuna in the law with no one able to recover the lost gift.
Application. Sinead is named and identifiable in the draft and in the file note. The scope of the duty covers precisely the risk that materialised - that the will would not be properly prepared and executed in time. The firm is vicariously liable for Niamh's conduct, and her retainer included arranging due execution, not merely drafting.
Counterargument to meet. The sons or the estate could sue, but they would recover only the costs wasted, not the lost gift; that makes the beneficiary's claim necessary rather than duplicative. The scope-of-duty argument that a solicitor does not guarantee a particular disposition misses the point: here the complaint is about execution, not about the terms of the will.
Conclusion. A duty is owed to Sinead, and the first defence fails.
2. How should Sinead's loss be measured, and how should the discount argument be handled?
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Measure. The governing principle is to put the claimant in the position she would have occupied had the will been validly executed - expectation, not reliance, loss. She would have received the house worth EUR 310,000; she receives EUR 20,000 on intestacy. The starting figure is therefore EUR 290,000, plus interest.
Discount for contingencies. The defendant must prove a real, measurable chance that Eileen would have revoked or varied the will, or spent the house. Vague speculation about old age is not enough. Here the file note recording a clear and firm intention, taken at a second instruction, is strong evidence of a settled disposition, and the short three-week interval narrows the window for a change of mind. A modest discount (say 10%) may be applied, but it must be supported by evidence, not by counsel's imagination.
Nursing care. If the evidence shows Eileen had other assets or was likely to remain at home, the care argument collapses. If she was at real risk of needing residential care that would have consumed the house, that is a genuine contingency and reduces the award - the court assesses the likelihood, sometimes expressed as a loss of chance.
Valuation date and credits. The house should be valued at the date of death with interest to judgment, or at trial if that avoids windfall; the EUR 20,000 intestate entitlement must be credited. The estate's separate claim for wasted costs is nominal.
Conclusion. Expect an award close to EUR 290,000, reduced by any discount the defendant can actually evidence.
3. What must Sinead prove on breach and causation, and what limitation period applies?
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Breach. The standard is that of a reasonably competent solicitor. A retainer to make a will includes seeing it properly executed. Cancelling the signing appointment twice without arranging an alternative - a home visit, an urgent attendance, a different witness - is below that standard, especially for a 78-year-old client. The file note helps: it shows instructions were complete and only execution remained.
Causation. Sinead must show that but for the cancellations the will would probably have been signed before the stroke. The defendant will argue the stroke might have come first anyway, which is why the chronology matters. The court decides on the balance of probabilities whether the will would have been executed, then discounts for any residual contingency in the measure of loss.
Contributory negligence. Eileen's failure to sign cannot be attributed to Sinead, and the firm would struggle to show Eileen was careless when she was relying on her solicitor to arrange the appointment.
Limitation. Six years from accrual under the Statute of Limitations 1957. The damage accrues on Eileen's death, so a 2024 death gives a claim to 2030. Do not assume the discoverability test applies: the amendment introducing it is confined to personal injury claims, so for this economic loss the clock runs from accrual. Advise Sinead to issue well within the six years, and not to rely on any extension.
Conclusion. Breach and causation are both arguable but strong; limitation is comfortable provided proceedings are issued promptly.