England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th February 2004

Mr Justice Mann :

The Nature of the Case in Outline

1. On 27th March 1995 Michael Fahy died. Some 18 months or so before his death a Will had been drafted for him by a partner of the Defendant firm of solicitors. When examined it was found that although it bore a date and a signature of two purported witnesses, it was not signed by the deceased. As a result he died intestate, with his estate passing to his parents. The Claimant would have been entitled under that Will, had it been validly executed, and she sues the Defendant firm in negligence for not having identified the defects in execution.

The Facts – More Detail

2. In the narrative that follows any reference to events should be taken as a finding of fact by me in that respect unless this judgment indicates otherwise. Since the events surrounding this case the Claimant has married and is now known as Mrs Deller. I shall refer to her as such in this judgment.
3. Mrs Deller and the deceased started co-habiting in Mid June 1991. She had two children by a previous marriage – a girl then aged 10, and a boy aged 8. The Claimant was herself aged 33, and Mr Fahy was 31. They lived together at 32 Olivine Close, Chatham, a house in the sole name of Mr Fahy. There was an Abbey National mortgage on the house securing about £72,000.
4. In the summer of 1993 Mrs Deller and Mr Fahy decided to make Wills. Mrs Deller told me, and I find, that the impetus came from Mr Fahy who had had a recent experience of a workmate suddenly dying without a Will and he wanted to make Mrs Deller secure if that were to happen to him. On the 5th August 1993 both of them visited Mrs Buckwell, a Partner in the Defendant firm, and gave instructions for a Will. The instructions from Mrs Deller required a gift to her children at the age of 30 years with certain gifts over. Mr Fahy was not a beneficiary. Mr Fahy's instructions were for a Will giving all to Mrs Deller if she survived him for one month; otherwise his estate passed to her children with certain gifts over. It was arranged that drafts would be sent out, and they were, under cover of a letter of the 20^th August 1993. The last paragraph of the letter reads as follows:

"I shall be pleased to learn whether you find the draft Wills in order or whether you wish to make any amendments thereto. I can then prepare the engrossments for your signatures and I note that I should forward the Wills to you at home for signature."

5. A couple of weeks passed and the Wills were not dealt with. Then on 11 September 1993 Mr and Mrs Bennett, Mrs Deller's parents, proposed a holiday together, leaving on 16th September. In the light of that event Mr Fahy and Mrs Deller decided that they should finalise their Wills. The relevant file of the Defendant firm contains a note reading as follows:

"Mrs Humblestone [i.e. Mrs Deller] agrees the Wills, Lynn Humblestone, Michael John Fahy. They are actually going on holiday tomorrow night and would like if possible to get it signed up before they go. Mrs Humblestone actually said to MJ that she was not worried about being signed up before they go on holiday as long as note went with Will to effect that that is what they require should anything happen to them. Advised Mrs Humblestone that a note of that nature would not suffice and really they should get their Wills formerly signed. MJ is to endeavour to get those Wills to them today."

That note is not itself clearly dated, but appears on the same piece of paper as a further note relating to the execution of one of the Wills to which I will come in due course. Between the two is a manuscript timing and dating reading "3 pm 14.09.93". It is just about possible that that dating refers to the upper rather than the lower note but it is unlikely, bearing in mind the lower note and what I find to be the events of 14th September. It seems to me to be probable that the note which I have just read was made on the 13 September. The 11 September was a Saturday and, since the holiday proposal had injected some urgency into the finalisation of the Wills, I think it is likely that Mrs Deller would have rung the solicitors at the first available opportunity, that is to say Monday 13th September. I therefore find that that is the date of that note. There is, of course, a puzzle about its terms, because it was not true that on the 13th September the family was due to go on holiday "tomorrow". However, that was probably not true of the next day (14th September) either. Since, on any footing, the note cannot have been made on the 15th September, I find that the relevant conversation took place on the 13th and the reference to "tomorrow" was either a mistake on Mrs Deller's part or a misunderstanding on the part of the maker of the note.

6. The reference to "MJ" in that note is a reference to Mary Jones, a secretary in the Defendant's office at Strood, the office at which Mrs Buckwell worked. It will be noted that the note anticipates sending out engrossments. In an Affidavit sworn in earlier Inheritance Act proceedings Mrs Deller stated that the engrossments were received by post. However, in these proceedings Mrs Deller's case is that she and Mr Fahy decided that they wished to finalise the Wills before going away on holiday and that she arranged to collect them, and duly did so; they were provided to her in a brown envelope. I find as a fact that she and Mr Fahy did indeed discuss the matter and that they were both content with the draft Wills provided to them and that Mrs Deller was speaking for both of them when she contacted the solicitors on 13th September. However, for reasons which will become apparent, I do not accept that Mrs Deller remembers the subsequent events with complete accuracy.
7. Mrs Deller's evidence suggests that she picked up two engrossments on 13th September. She then goes on to say that she was aware that Wills had to be signed and witnessed, but believed that a relative could not be a witness. Mr Fahy thought that for that reason Mrs Deller's parents (that is to say the Bennetts) could witness his signature but not hers.
8. On 13th September Mr Fahy was working. He had a job relating to the construction of the Channel Tunnel. Mr Fahy telephoned to say he would be late back from work and asked Mrs Deller to get her parents (who lived opposite) to sign the Will (presumably as witnesses). Mrs Deller expected him to sign the Will himself when he got back. She realised that that was not the correct procedure but did not fully think about the implications of that request. She took the engrossment over to her parents and left it with them at between 5 and 6 pm, asking them to sign it. Later on, at about 8.30pm her mother brought the Will back, signed by both Mr and Mrs Bennett as purported witnesses. She left the Will with a pile of other documents which Mr Fahy was to deal with when he got home. The other documents were bills. Her witness statement, which stood as her evidence in chief, says "I left it with a pile of other documents, namely bills, for Mr Fahy to sign when he returned from work." She told me she did not expect him to sign bills; what he was doing was writing cheques and completing relevant payment slips.
9. Mr Fahy returned from work at about 9.00 pm and then sat at the kitchen table dealing with the documents she had left for him. After he had dealt with them he said something like "right, they are all done" and, said Mrs Deller, he put the Will in the envelope in which it had come from the solicitors. She did not see what he had done to the Will. This was at about 10 pm. At 11 pm they went to bed and that was the end of the events for that day.
10. Mrs Deller then said that the next morning, at approximately 11 am, she took both Will forms to the Defendants offices. On her chronology this would be the 14th September. She thought there was nothing further to be done in relation to Mr Fahy's Will but wanted to complete her own so that everything had been done before they went away on holiday. At the office she was met by two women, both secretaries. She did not see Mrs Buckwell. She executed her Will in the presence of the two secretaries, who signed their names accordingly. No issue arises as to the execution of her own Will. On the same occasion she handed over Mr Fahy's Will and, she said, asked then if it was in order. She had assumed that it was because she thought that it had been signed by him the previous evening and therefore bore all the necessary signatures. According to her evidence, the older one of them looked over the Will, stated it was in order, gave copies of both documents to Mrs Deller and retained both for safekeeping. She therefore left the office on that occasion believing that both she and Mr Fahy had completed Wills, and believing both to be valid.
11. Certain elements of this story are supported by the evidence of Mr and Mrs Bennett who both gave evidence before me. Mrs Bennett confirmed that Mr Fahy had mentioned to her the death of a work colleague without leaving a Will, which led to problems for his partner. He told her that he would not want this to happen to Mrs Deller and that he would be making a Will. He wanted her and her husband to be witnesses. On a date which she put at 14th September, she says her daughter rang her in the late afternoon saying that Mr Fahy was going to be late home from work and asking whether she and her husband could sign the Will so that Mr Fahy could sign when he did return. The Will was brought over at 6.00 pm and she signed, as did her husband, in the early evening. Mr Bennett told me that he wasn't a party to any discussion about Wills (he did not enjoy a happy relationship with Mr Fahy so that is perhaps natural) and the first he knew about the document was when he got back from work on a date which again he put at 14^th September. His wife told him that he should sign the document with her, so that Mr Fahy could sign it later that even so that it could be taken to the solicitors the next day. He was familiar with how Wills should be executed but did not give proper consideration to the fact that he was being asked to sign without Mr Fahy being present.
12. I should explain at this point what the problem was in relation to the Will. When, in circumstances which I shall briefly describe later, Mr Fahy died, it was found that he did not in fact sign the Will. Immediately above the place he should have signed there was the familiar typed provision for dating the Will in the following terms:

"IN WITNESS whereof I the said MICHAEL JOHN FAHY have to this my last Will set my hand this [blank] day of [blank] one thousand nine-hundred and ninety three."

In the first blank there is the manuscript number "14^th" and in the provision for the month there is, in block capitals, the word "SEPTEMBER". The back sheet of the Will has at the top of it "Dated" followed by a blank, followed by the number 19. That is obviously intended to be completed by the day, month and year of the execution. The 93 has been typed in. The words "14^th September" have been placed therein in manuscript. Mrs Deller identified both manuscript datings as being in the handwriting of Mr Fahy, and that has not been challenged. It therefore appears, and I find, that on that date Mr Fahy did date the Will (which was the same as the previous draft drawn up by the Defendant firm) but did not sign it. It is Mrs Deller's case that his failure to sign was accidental; he believed that he had signed it or otherwise done what was necessary. She says that the failure of the Defendants' employees to spot that, and indeed what she says was their express confirmation that it was properly executed ("in order") amounted to negligence. She says (or I infer from her evidence) that if they had pointed out that he had not actually signed it, she would have taken it back for him to execute, and what is more it would have been executed properly (she says in terms Mr Fahy would have signed it) because she should also have been told that the prior signature of witnesses, which was obvious on the fact of the document handed over to the two secretaries, was obvious and would have been obviously improper to a firm of solicitors.

13. Before considering those issues I have to make findings as to the accuracy of Mrs Deller's version of events. The Defendants accept that both "Wills" were lodged with them for safekeeping. However, they say that this happened later, probably on 2 December. The only witness called by the Defendants was Mr Franklin, who is another partner in the Defendant firm but who had no direct knowledge of the circumstances of the drawing and execution and lodging of the Wills. I was told that Mrs Buckwell has declined to co-operate in giving evidence and for that reason was not called. Mary Jones, the secretary involved, was also not called; I was not given a reason for that. In the circumstances I did not hear evidence from any of the actual participants on the Defendant's side of this case. The evidence relied on by the Defendants was (apart from cross examination of Mrs Deller's witnesses) documentary.
14. The Defendants' file reveals the following relevant documents. I have already referred to a sheet of paper containing two file notes and have read one of them. The second appears below the dating and timing "3.00pm 14.9.93" which, again, I have already referred to. That note reads as follows:

"Mrs Humblestone called to sign her Will. Advised her of the amount of our charges. Will witnessed by MJ and AM. She has taken Mr Fahy's Will for him to sign and will return them here when calling to pay after her holiday in a weeks time. We are then to provide her with copies of the Wills".

And below that there are the typed initials "MJ".

15. That note obviously contradicts Mrs Deller's version of events because it is inconsistent with her having made a prior visit at which she took away both engrossments and her bringing back Mr Fahy's Will "executed" at the same time as she signed her own. On 10 November 1993 Mrs Buckwell wrote to both Mr Fahy and Mrs Deller as follows:

"I refer to Mrs Humblestone's visit to the Office when she signed her Will and when she took Mr Fahy's Will for signing. Mrs Humblestone advised that she would return Mr Fahy's Will here for safekeeping when paying the account. I would confirm to you that the amount is in the sum of £80.00, which attracts VAT of £14.00 making a total of £94.00. Perhaps you would be good enough to attend to payment whereupon I will forward a receipted VAT invoice."

Again, that is inconsistent with Mrs Deller's sequence of events, as is an attendance note of the next day (11 November 1993) which reads:

"Mrs Fahy telephoned 11.11.93. She apologises for not having paid our account. She has been unwell with a Kidney Infection and completely forgot. However, she would like to leave it in abeyance until the end of the month when she will call here, pay the account and leave the two Wills with us – we to take copies for them."

16. Next there is a copy invoice to Mr Fahy and Mrs Humblestone in the sum of £80.00 which describes the work carried out as follows:

"To taking your instructions in respect of the preparation of your Wills, drawing draft Wills for your consideration; obtaining your approval of the drafts and engrossing the same; attending Mrs Humblestone on execution of her Will; handing Mr Fahy's Will to Mrs Humblestone for signature by him at home…"

Again, the discrepancies between that document and Mrs Deller's version of events is obvious. The bill was paid on 2 December. The Defendants say that it is on that date that Mrs Deller attended their offices, paid the bill, lodged the two Wills and was provided with copies. They do not accept that on that occasion anyone looked at the Wills and said they were "in order" or anything else, but they have not produced any witness who is able to say what did happen. The Defendants keep a record of the Wills that have been lodged with them and those records show both the documents having been lodged. They are listed by name, address and date of the Will, but the records do not show the date of lodging. The records are in manuscript. Mr Franklin could not tell me whose handwriting it was, but he was 90% certain it was not Mrs Buckwell's. He did not know whether or not it was Mary Jones's handwriting.

Findings of Fact

17. It might be thought, and indeed Mr Robert Leonard, who appeared for Mrs Deller submitted, that it does not matter precisely when or on what occasion the Wills were handed in and copies provided, because on any footing Mrs Deller was told that Mr Fahy's Will was good, or, if she was not told that, nevertheless it was negligent for the solicitors in the position of the Defendants to take in the Will for safekeeping without checking to see whether they were, on their face, what they were intended to be. I have some sympathy with that submission, but since the case depends in part on the credibility of Mrs Deller as a witness (especially in relation to the circumstances in which Mr Fahy dated but did not sign the Will), and since the facts have to be put into their proper factual context, it is necessary for me to make some findings in this respect.
18. I have already indicated that I accept Mrs Deller's evidence as to how the question of Wills came about. I also accept her evidence and Mr and Mrs Bennett's as to how the Bennetts' signatures came to be appended to the Will. However, I do not think that her account of how she acquired the engrossments and delivered them to the solicitors is accurate. It is now almost 11 years since the events in question, and it is quite understandable that the precise sequence of events has become confused. Mrs Deller has not sought to give deliberately untruthful evidence, but I find that she is mistaken in her order of events, the possibility of which she was frankly prepared to admit in evidence. I prefer the evidence provided by the contemporaneous documents. I therefore find that Mrs Deller did not take two engrossments away from the solicitors, put Mr Fahy's before him for execution, and then return to the solicitors to execute her own Will and deposit both. I find that she did not visit the solicitors on the 13 February at all but visited them once on the 14 September. On that occasion she executed her own Will. Her own Will is dated 14 September 1993, and there can be no question but that that is the date on which that happened. It bears the attesting signatures of two secretaries, including Mary Jones. She then took both Wills away with her. At some point on the evening of 14 September, after the Bennett's signatures had been placed on the document, Mr Fahy dated his Will twice but did not sign it. Thereafter it remained in the house. Mrs Deller was reminded of the need to pay and to lodge the Wills when she was chased by the solicitors in the letter I have referred to above, and in due course, probably on 2 December 1993, she lodged both Wills and was then given copies of them. I do not think that any other version of events is consistent with the communications that were taking place between the parties. Mrs Deller has, understandably, become a little confused about the precise sequence of events.
19. That does not, however, necessarily mean to say that she is wrong in relation to the two crucial pieces of evidence in this case, namely the circumstances in which Mr Fahy failed to execute the Will, and in what was said to her when the Wills were lodged (though, as will appear the second of those is not necessarily determinative in the light of the view I have taken about the responsibilities of solicitors acting as the Defendants did).
20. In relation to the first of those, I have set out Mrs Deller's version of events. It is her case that Mr Fahy thought he had done all he had to do, and that by mistake he did not sign it. It may be that he was distracted at that crucial moment, it may be that he simply made a mistake, or that maybe there is some other explanation consistent with accident, but accident it was. Mr Cooper, for the Defendants, said that those were possible explanations, but they were not probable explanations, and certainly not sufficiently probable to allow Mrs Deller to establish on the balance of probabilities that that is what happened. It may be, said Mr Cooper, that Mr Fahy had second thoughts, either about making a Will at all or about some provision in the Will or about the gifts. There may be other explanations not consistent with accidental non-signature. There was no explanation that could be established on a balance of probabilities which would allow Mrs Deller to succeed on this issue. She had demonstrated that she could be confused about the order of events, and it therefore could easily be the case that she had conflated two or more separate incidents, not necessarily involving the Will, or perhaps even involving the Will, in order to arrive at the events she described, though Mr Cooper did not (rightly, in my view) go so far as to suggest deliberate fabrication by Mrs Deller.
21. In dealing with this issue I do not get much assistance from the demeanour of the witnesses. I am quite satisfied that each of the witnesses appearing for the Claimant was telling me the truth as they saw it. Mrs Deller maintained her version of events in the face of cross examination demonstrating that it could not be true, but then fairly said that she had given her evidence as she recalls the events in question. She gave her evidence very simply. There was nothing incredible about her story, or in the way in which she delivered it. I prefer to approach this issue by considering the probabilities arising out of elements of the story which are otherwise clearly established. At the beginning of the story one has the determination of Mr Fahy to make a Will and his giving clear instructions as to what it should contain. That Will was drafted and its contents approved. An engrossment in the same terms was then prepared. One can now jump to the end of the story, and the clearly established fact that Mrs Deller deposited that Will along with her own at the solicitors. One has to ask why she did that. The obvious answer is that she believed that Mr Fahy had executed his Will. Why would she believe that? There is not a shred of evidence to suggest any positive change of mind. Something must have happened to have led her to that belief (since I find that she clearly had it). What can that have been? It could in theory have been a number of things, but on the facts of this case there is only one candidate, namely some sort of indication that Mr Fahy thought he had done what was necessary. Why otherwise would Mrs Deller have her belief? It is known that Mr Fahy dated the document twice himself. It is therefore quite clear that the document was put before him. The act of dating a document is an act of some finality, so it is known that Mr Fahy did an act with those qualities. Testing for the moment the alternative cases, there is no evidence at all that Mr Fahy demonstrated any misgivings with the engrossment, and if he had had any one would have expected him to have communicated them to Mrs Deller. He did not do so. In the circumstances, I do not find the thesis of some sort of change of mind to have any attraction. On the facts of this case, and in the light of the evidence that has been given (which also includes the evidence of Mr Fahy's keenness to have a Will) I find that Mrs Deller's version of events in relation to the signing of the Will related documents, and the dating of the Will by Mr Fahy, and his indication that "right, they are all done", is clearly established on a balance of probabilities and I accept it.
22. That also assists in dealing with another important question of fact which arises in this case, namely whether Mr Fahy did intend to execute his Will by appending his signature to it and failed to do so by some sort of accident. Again, I find that he did. It is an odd thing to do, to date a document without actually signing it, when a signature is obviously required, and it can be argued that the need for a signature is so obvious that its omission must be deliberate. Against that is the oddity of dating a document not once, but twice, which would be utterly pointless if it was not intended to have effect. If Mr Cooper's possible explanations were correct, Mr Fahy must have carefully written in "14th September" above the signature space, and then turned the Will over to date it on the back, whilst at the same time harbouring second thoughts about its contents, or perhaps not having quite decided to put his signature on it. I think that that is unlikely. Second thoughts might just about be consistent with dating it above the signature space, but is much less likely to be consistent with the dating of the back sheet as well. In addition, there is no reason to suggest why he should have had second thoughts in relation to a Will a draft of which he had already approved, and no evidence that he expressed them. One would have expected him to have expressed them to Mrs Deller if he had had them. In the circumstances I find that, on the balance of probabilities, Mr Fahy omitted to place his signature on the Will by accident. Quite why he did that will never be known – perhaps he was distracted, or perhaps he was indeed too quick and was careless. However, whichever it was, I consider that he intended to sign it.
23. Of course, his signing it would not have produced a valid Will because it would not have been properly executed. However, that finding of fact carries with it the finding, which I also make, that his intention to make a Will in that form continued after 14th September for some considerable time, and in particular it remained in existence at the date, whenever it was, when the Will form was lodged with the Defendants, whether that date be in September or December 1993. I also find that had his omission been pointed out to him, he would have wished to have executed the Will properly, including a proper attestation of his signature.
24. Certain submissions of Mr Cooper require me to make findings as to how long that intention lasted. Mr Cooper submitted that as a matter of law Mrs Deller could not succeed unless she established that Mr Fahy's intention to make a Will continued up to the date of his death. I shall deal with the legal submissions in due course, but at this stage I make the following findings of fact. There is, in my view, no question of his having changed his mind at any time up to the beginning of March 1995. At this point it becomes necessary to consider the circumstances in which the Claimant and Mr Fahy separated and in which he ultimately died. On about 5th March 1995 it came to Mrs Deller's attention that Mr Fahy had made approaches to her daughter which were improper. I do not propose to give any details in this judgment; the matters appeared sufficiently clearly from the evidence before me. It is sufficient at this point to say that the matters resulted immediately in the two children leaving the house and it seriously imperilled the relationship between Mrs Deller and Mrs Fahy. In effect, after a short time it became apparent to Mrs Deller that their relationship was at an end, and understandably so. It appears from some notes of Mr Fahy, and from other evidence that I have read, that Mr Fahy probably accepted that that was the case. There is evidence that Mr Fahy was in great emotional turmoil, and his death shortly thereafter was in fact suicide. Mr Cooper invites me to find, on the basis of all the evidence, that Mr Fahy, at the date of his death, no longer intended that Mrs Deller should benefit under what he thought was his then valid Will.
25. I do not think that the evidence allows me to draw that conclusion. As I have said, it is clear that until the beginning of March Mr Fahy maintained his intention. On the 5th March the Family was thrown into turmoil, but it does not necessarily follow that at that time Mr Fahy had changed his intention as to whether Mrs Deller should benefit under his Will. There is some evidence in Inheritance Act proceedings brought by Mrs Deller to the effect that he was contemplating moving out of his house with a view to allowing her to move in; there is also some evidence from manuscript notes left by Mr Fahy that he intended to let the house. I do not think that that is the totality of the evidence indicates that Mr Fahy had changed his mind. One may well suspect that he had simply not addressed his mind to it, and Mr Cooper conceded that that sort of half-way house was not sufficient for his purposes. Be that as it may, I do not consider that he had changed his mind. I do not think that one can read anything into the fact that he did not take steps to revoke his Will; I suspect that that step never occurred to him. Mr Leonard relied on the fact that (as was the case) Mr Fahy had in 1994 nominated Mrs Deller as the beneficiary of certain funds payable under his pension arrangements should he die, and that he did not change that nomination in the short period between the relationship breaking down and his death. While it would have been significant had he actually revoked that mandate, I do not think that his failure to do so points positively to the fact that he was clearly still content for Mrs Deller to benefit under his Will. However, despite that, it may well be that he was. A person in the position of Mr Fahy at the time, may well have continued his former testamentary intentions if he had been forced to face the point, but the fact of the matter is that he was not. There is therefore no evidence to suggest a positive change of mind, and I so find.
26. Last, I have to make findings as to what happened when Mrs Deller lodged the Wills. Before accepting her evidence too readily on this point, I must bear in mind that she has clearly demonstrated confusion as to when it was that she lodged them, and the circumstances in which they were lodged. That confusion is capable of detracting from the force of her evidence that she was assured by the secretary to whom she handed the documents that they were in order. However, having heard her evidence, and having considered the probabilities of this case, I find that she is correct in her recollection on the point. She cannot be confusing any two occasions, or any two events, in this respect. On the findings that I have made, and indeed on Mr Cooper's case, she handed the Wills in. It seems to me that her account of their being looked at by someone and her being assured that they were in order is either accurate or it is fabricated. Since I do not believe her to be a fabricator of evidence, it follows that she must be accurate. Furthermore, it is plausible. Mr Franklin gave evidence of the practice in his firms offices in relation to Wills, and his evidence was that a Will executed outside his firms offices, if it was not executed in the presence of a representative of his firm, would be checked when it was lodged with his firm. His evidence was that it would be checked by Mrs Buckwell. It is not Mrs Deller's case that the Wills in this case were checked by her, but it would be consistent with the general practice which that demonstrates that whoever it was that received the Will should check them and give the assurance. I therefore find that Mrs Deller was assured, probably by a secretary, and probably by Mary Jones, that both Wills, or purported Wills, were in order. I have already found that she had been told they were not, and in particular if she had been told that Mr Fahy's Will was improperly executed, she would have procured its proper execution.

The Law and its Application to this Case

27. The law applicable to this case is contained in the line of authorities starting with Ross -v- Caunters [1980] Ch. 297 and passing through White -v- Jones [1995] 2 AC 207. As a result of those authorities it is the case that a solicitor instructed in the matter of a Will has a duty to the testator to ensure that the formalities are properly complied with (so far as it is reasonably possible for him to do so), and that a similar duty is capable of arising and arises in favour of a beneficiary, so that a beneficiary, who is disappointed in the sense of not being able to take under a Will where the solicitor has been negligent in the process of acting in the drawing of a Will, has a financial claim against the solicitors for breach of duty. The cases under this head are various. Some turn on negligent drafting, some turn on failures to do such things as serving notices of severance of beneficial joint tenancies, and Ross –v- Caunters was itself a case relating to formalities. In the words of Chadwick L.J. in Carr-Glynn –v- Frearsons (a firm) [1999] Ch. 326 at p. 336:

"The duty owed by the solicitors to the testator is a duty to take care that effect his given to his testamentary intentions… The duty owed by the solicitors to the specific legatees is not a duty to take care to ensure that the specific legatee receives his legacy. It, also, is a duty to take care to ensure that effect is given to the testator's testamentary intentions. The loss from which the specific legatee is to be saved harmless is the loss from which he will suffer if the effect is not given to the testator's testamentary intentions."

28. On the basis of that law I have no difficulty in concluding that in principle a solicitor is capable of owing a duty to both testator and beneficiaries, in an appropriate case, to ensure and check that the proper formalities for the execution of a Will have been complied with.
29. The question therefore arises as to how that law applies to the facts of this case. I consider that it is clear on the facts that I have found that the Defendants owed a duty to Mr Fahy, and a consequential duty to his beneficiaries, to check that the document executed by him was properly executed and that that duty was broken. I say that for at least two reasons. First, the solicitors were instructed to draft the Will and knew that in due course they would be asked to keep it safe custody. In the course of their functions it became apparent that they would not be supervising its execution. I think that the normal fulfilment of such a retainer would require the solicitors, when the document was returned to them for safekeeping, to check that, on its face, and on the facts then known to them, its execution was ostensibly valid. This view is the same as that expressed by Lloyd J in Gray –v- Richards Butler, unreported, 24^th June 1997, which I would in any event follow. If reinforcement is necessary it is supplied by evidence that Mr Franklin gave me, which was to the effect that it was the normal practice of his firm, where it drew Wills which were executed out of the office without the supervision of a member of his firm, to check the execution and attestation when it came back, and he went so far as to say:

"Any solicitor would tell you that an executed Will should be checked by a fee earner."

30. It therefore follows that in this case the Defendant firm was under a duty to check the ostensible execution of Mr Fahy's Will, whether or not it had been asked. To that extent it does not matter whether or not the returned Wills were looked at and pronounced "in order". If they were not looked at, they ought to have been. The sort of conscientious check which should have been carried out on Mr Fahy's Will should have revealed the absence of his signature, because it is obvious that there are only two signatures, and not three, on the page, and that the two signatures which are there are in the part appropriate for witnesses and not in the part appropriate for the testator. It would have been negligent to have failed to point this out to Mr Fahy, or to Mrs Deller if she was present. The second reason for the duty arising on the facts of this case is that, on the facts as I have found them, the solicitors assumed such a duty by checking the Wills when they were returned. I have found that they were checked and found "in order". In so doing, the solicitors assumed a duty of care and were in breach of it. It makes no difference if, as may have been the case, that pronouncement was by a secretary, and to be fair to him Mr Cooper did not suggest to me that it did.
31. It therefore follows that the Defendant firm was in breach of duty in this case and that breach extended not only to Mr Fahy but also to Mrs Deller as the principal beneficiary under his Will. I have already found that, had the error been pointed out to Mr Fahy, a proper execution would have occurred. If there are no other factors pointing the other way, it would follow that Mrs Deller has a claim against the Defendant firm for the equivalent of the amount which she would have taken under the Will had it been validly executed.
32. Mr Cooper raises two principal reasons why that consequence should not follow. The first is that he says there is a requirement that the intention to benefit Mrs Deller should continue in the testator up to the date of his death. Without this continuing intention Mrs Deller has no claim, and Mr Cooper says that the evidence does not permit me to conclude that he had such an intention.
33. I have already referred to the evidence of this point, and made my findings in relation to it. Mr Cooper accepted in argument that in a case such as this, where one starts from a position where the testator does intend a disposition in favour of the given beneficiary, it does not suffice for his purposes to show that a degree of equivocation has crept in. It has to be apparent that there was some actual change of mind, rather than the creation of a generally open one. On that footing Mr Cooper does not get home on this point on the evidence, because I have held that there was at most a degree of uncertainty, and arguably not even that. There was certainly not, in my view, a change of mind on the part of Mr Fahy in this respect. It is therefore not strictly necessary for me to go on and consider whether Mr Cooper is right in principle. However, I do make the following observations on his point.
34. Mr Cooper started his argument with the case of Gibbons –v- Nelsons [2000] PNLR 734. In that case the claimant was a person who was potentially interested in a fund because she would have benefited had her sister exercised a power of appointment in her favour. She claimed that one firm of solicitors, who drafted a Will in 1986 for her sister, were negligent because that Will had the effect of exercising the power in favour of various charities, and that a second firm who drafted a Will in 1994, were similarly negligent in that the Will was in similar terms but with different charities nominated in not spotting and dealing with the point. The claim failed because Blackburne J found that the Claimant was not sufficiently identified as an intended beneficiary of the power of appointment in 1986 and the claim against the 1994 solicitors failed because their instructions were merely to change the identity of the charities. However, in a passage headed "Causation", the learned Judge went on to consider what the position would have been had he been wrong in finding that the Claimant was not sufficiently identified. He said that he would have found the 1986 solicitors to be liable, and that the chain of causation was not broken by the fact that the 1986 Will was superseded by the 1994 will. He then added:

"It also assumes that Alice's wish that her half share in the trust fund should be passed to Elsie (the Claimant) continued up to the time of her death. If I had concluded that at the time of her 1986 Will that was Alice's intention, I would have had no reason for concluding that anything happened thereafter to alter it. This issue would only have been relevant to whether Elsie's remedy should lie against the [1986] solicitors or against… [the 1994 solicitors]."

I do not think that Blackburne J is intending to introduce some requirement in principle that it must be shown that the testamentary intention continues up until death in all cases. He is merely reflecting on the fact that, in any given case, a change of testamentary intention, coupled with other factors, may break the chain of causation, or, in the case before him, it might have altered the identity of the solicitors liable. I can see no reason in principle why, in every case, that continuing intention should be established if a Claimant is to succeed. Mr Cooper also relied on a decision of Judge Moseley Q.C. in Hemmens –v- Wilson Browne [1995] 223. That was a case of an inter vivos transaction which did not on the facts have the effect of a gift which the Claimant said she was led to believe it had. Judge Moseley found against the claim. This case preceded White –v- Jones, but it was argued on the basis of principles to be derived from Ross –v- Caunters. In relation to that, at page 236, the Judge found that there was no duty of care because it would not have been fair, just or reasonable that the law should impose such a duty on the solicitor. In this respect he relied in part on the fact that the donor was still alive and the only reason why the donee did not take the gift was because the donor had changed his mind. Mr Cooper said that this supported his thesis. Judge Moseley's reasoning was that this factor negated the existence of the duty. Whether that be right or not in an inter vivos case, the reasoning does not seem to me to have any logical application to testamentary cases. There is nothing in White –v- Jones to suggest that this factor affects the duty. Nor, in truth is there anything in White –v- Jones which supports it as some sort of independent factor. If it is to play any part it ought to be as one of the factors going to the constituent elements of the tort, that is to say duty, breach, causation and damage. If it is relevant, it seems to me to be most likely to go to causation, which is where Blackburne J put it in Gibbons –v Nelsons. In the circumstances, I do not think Mr Cooper's boldly stated point that this requirement is "axiomatic" is correct, but in any event, on the facts it does not arise.

35. The next point that Mr Cooper took was to challenge whether, on the facts, there was a duty to Mr Fahy in relation to his Will. Since the duty to the beneficiary is, in his words, "parasitic" upon the duty owed to the testator, if there was no such duty then there would be no duty to the beneficiary. He based his submission on the facts on what he says was an absence of evidence that the deceased knew that the Will was being returned to the solicitors. If the deceased did not know that, and if Mrs Deller was not acting on his behalf in returning it, then there was no agency vested in Mrs Deller which would allow the duty to arise in favour of Mr Fahy.
36. If the evidence demonstrated that Mrs Deller was acting officiously in taking the Will to the Solicitors then there might be something in this point. If that were the case then it might be that Mrs Deller would have to establish that the events at the solicitors office when she took the Will in gave rise to some independent stand-alone duty to her. However, I do not think that that argument, ingenious though it is, is one which reflects the real facts of this case. It is true that there was no evidence of a discussion between Mrs Deller and Mr Fahy in which he gave something amounting to express authority to her to send the Will back to the solicitors once it had been "executed" by him . During the course of the evidence, and in the course of the questions put by me, it is true that Mrs Deller said that on the evening of the execution, or possibly on the morning after, Mr Fahy indicated that the Will was in the envelope on the table, from which evidence it might have been inferred that he was inviting her to do something appropriate with it. That is one piece of evidence I do not accept from Mrs Deller. It does not appear in her witness statement and has never been suggested before, and I do not think that, on the balance of probabilities, it happened, plausible though it may be. However, despite that, I consider that the relationship between them, and particularly the relationship in relation to these Wills, were such that I can properly infer that Mrs Deller was authorised to do what was sensible in relation to the executed Will, and since it would have occurred to Mr Fahy that it was an important legal document, it was within that authority to arrange for its safe custody and arrange to take it back to the solicitors. That being the case, it was lodged with his authority, and the confirmation that it was "in order" was received by Mrs Deller as his agent. Accordingly, I do not think that this point succeeds.
37. Mr Cooper's last point proceeded from an argument derived from a passage in South Australia Asset Management Corporation –v- York Montague Limited [1997] AC 191. He relied on the now well known example given by Lord Hoffman of the mountaineer's knee:

"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee… on what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctors bad advice because it would have occurred if the advice had been correct".

Mr Cooper relied on that passage in support of a proposition that the loss has not been caused by the solicitors negligence in this case, because even if there had been a signature on the Will, the Will would not have been valid because the signature would not, on the facts as we now know them, have been properly witnessed by Mr and Mrs Bennett. Accordingly, the Will would have failed but for a reason which has nothing to do with the absence of a signature. Its failure would have been the result of the fact that it had not been properly executed, and that improper execution was not the responsibility of the solicitors.

38. Mr Cooper's point, if I have understood it correctly, would succeed if it were established that even if the solicitors had pointed out that Mr Fahy had not signed the Will, it would still have come back invalid because it would have been signed by him otherwise than in the presence of two witnesses. However, it fails because it ignores the basis on which the negligence was pleaded in this case and which I find to be established. From time to time the focus of this case has been on the absence of the signature of the testator, but it must not be overlooked that the document also demonstrated that the participants had adopted a less than conventional approach to attestation. The particulars of negligence in this case complain that the solicitors also failed to spot that, and in my view that complaint is justified as a matter of fact and law. Had the solicitors complied with their duty, they would have noted the absence of a signature, and the unorthodox approach to attestation, and would have advised that proper re-execution be obtained. I find that had they so advised, proper execution would have taken place. In those circumstances Lord Hoffman's observations, and Mr Cooper's submissions on them, become irrelevant.

Conclusions

39. Since I reject Mr Cooper's arguments on the law and its application to the facts of this case, and in the light of the other findings I have made, it follows that I find that the Defendants were in breach of duty to both Mr Fahy and Mrs Deller. That breach of duty related to the absence of a proper execution which would have otherwise taken place. Had that execution taken place the Will would have been valid and would have been Mr Fahy's only outstanding Will at the date of his death. In those circumstances Mrs Deller would have taken his estate. As a result of the negligence she has been deprived of the benefit of the estate, save that, through the Inheritance Act proceedings that I have referred to above, she has recovered the proceeds a pension policy.
40. In order to save time at the oral hearing, the precise amount of damages was not argued. It is hoped that the amount of the damages can be agreed between the parties, since it is not apparent that any point of principle arises. If it can be agreed I will pronounce the agreed amount as being the sum payable. If it cannot be agreed then, on the handing down of this judgment or on some other appropriate occasion, I will rule on the differences between the parties. The net estate of Mr Fahy was, according to the letters of administration granted to his father, only just over £100,000, so in the context of litigation such as this not a lot is in dispute, so it is very much to be hoped that further costs are not run up litigating what are likely to be small areas of dispute on damages