Humblestone v Martin Tolhurst Partnership (a firm)

Factual and Procedural Background

On 27th March 1995, the deceased passed away. Approximately 18 months prior, a Will was drafted by a partner of the Defendant firm of solicitors. The Will bore a date and signatures of two purported witnesses but was not signed by the deceased himself. Consequently, the deceased died intestate, and his estate passed to his parents. The Plaintiff, who would have been entitled under the Will had it been validly executed, brought a negligence claim against the Defendant firm for failing to identify defects in the Will's execution.

The Plaintiff and the deceased began cohabiting in June 1991 at a property solely owned by the deceased. In the summer of 1993, both decided to make Wills. The deceased instructed the Defendant's solicitors accordingly, with the drafts sent out on 20th August 1993. Despite initial delays, urgency arose in September 1993 due to a proposed family holiday, prompting efforts to finalise the Wills.

The Plaintiff collected the draft Wills and arranged for her parents to witness the deceased's Will, leaving it with them for signature. The witnesses signed the Will, but the deceased did not. The next day, the Plaintiff executed her own Will at the Defendant’s offices and handed over the deceased’s Will for safekeeping, believing it to be properly executed and was assured it was "in order" by the Defendant's staff. However, the deceased had only dated the Will twice without signing it.

Subsequently, the Plaintiff lodged both Wills with the Defendant firm, paying the associated fees. The Defendant firm’s records and correspondence contradicted some aspects of the Plaintiff’s recollection, particularly regarding the timing and process of lodging the Wills. The court made findings that the Plaintiff’s account of the sequence of events was partially mistaken, but accepted her evidence on the crucial points regarding the deceased’s failure to sign and the assurance given by the Defendant’s staff.

Legal Issues Presented

1. Whether the Defendant solicitors owed a duty of care to the deceased and the Plaintiff to ensure that the Will was validly executed.
2. Whether the Defendant firm breached that duty by failing to identify the absence of the deceased’s signature and the improper attestation.
3. Whether the Plaintiff can establish that the deceased intended to benefit her under the Will up to the date of his death.
4. Whether any breach of duty by the Defendant solicitors caused the Plaintiff’s loss.

Arguments of the Parties

Plaintiff's Arguments

• The deceased intended to execute the Will but accidentally failed to sign it.
• The Defendant solicitors were negligent in failing to identify the absence of the deceased’s signature and the improper witnessing.
• If the defect had been pointed out, the deceased would have properly executed the Will.
• The Plaintiff was assured by the Defendant’s staff that the Wills were "in order" when lodged.
• The deceased maintained his testamentary intention to benefit the Plaintiff until his death.

Defendant's Arguments

• Disputed the Plaintiff’s version of events regarding the timing and manner of lodging the Wills.
• Suggested alternative explanations for the deceased’s failure to sign, including possible change of mind.
• Argued that the deceased’s intention to benefit the Plaintiff did not necessarily continue to the date of death.
• Contended that even with a signature, the Will would have been invalid due to improper witnessing, thus no causation of loss.
• Maintained that no duty arose if the deceased was unaware the Will was returned to the solicitors and that the Plaintiff lacked authority to lodge it on his behalf.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the factual matrix and the credibility of witnesses, finding that the Plaintiff’s evidence was largely reliable on key points despite some confusion over timing. It was established on the balance of probabilities that the deceased dated the Will twice but failed to sign it, and that this omission was accidental rather than deliberate. The court rejected alternative explanations suggesting a change of mind, noting the deceased’s consistent intention to benefit the Plaintiff and absence of any revocation or contrary conduct.

Legally, the court confirmed that solicitors owe a duty of care to both the testator and the beneficiaries to ensure that the formalities of Will execution are properly complied with, including checking the Will upon its return for safekeeping. The Defendant firm breached this duty by failing to identify the absence of the deceased’s signature and the improper witnessing. The court relied on established case law, including Ross v Caunters and White v Jones, to affirm that the duty extends to beneficiaries who suffer loss due to solicitor negligence.

The court also addressed the Defendant’s argument that the Will would have been invalid anyway due to improper attestation. It found that the negligence included failure to spot this defect and that proper re-execution would have remedied both issues. Thus, causation was established as the Plaintiff’s loss flowed from the Defendant’s breach.

Regarding authority to lodge the Will, the court inferred that the Plaintiff was authorized by the deceased to take reasonable steps to safeguard the Will, including lodging it with the solicitors. The assurances given to the Plaintiff that the Wills were "in order" were accepted as credible and contributed to the breach of duty.

Holding and Implications

The court held that the Defendant solicitors were in BREACH OF DUTY to both the deceased and the Plaintiff by failing to ensure the Will was validly executed and properly checked upon return.

As a direct consequence, the Plaintiff has a valid claim against the Defendant firm for the loss suffered by being deprived of the benefit under the Will. The court found that but for the Defendant’s negligence, the Will would have been properly executed, and the Plaintiff would have inherited the deceased’s estate.

No broader legal precedent was established beyond the application of existing principles. The ruling primarily affects the parties by entitling the Plaintiff to damages equivalent to the value she would have received under the valid Will. The court expressed hope that the parties would agree on the amount of damages to avoid further litigation costs.