Volume 4 (1996) / Issue 4
The testator quarrelled with his family and executed a will to disinherit his daughters. Shortly after this the parties were reconciled and the testator wished to make a new will which included substantial gifts to his daughters. He instructed his solicitors to prepare a will to that effect. Unfortunately, however, they delayed preparations for about two months and at the end of that time the testator died without the new will having been executed. The earlier will was therefore unrevoked.
The daughters sued the solicitors to obtain the sums they would have been entitled to under the new will.
At first instance the judge dismissed the plaintiffs' claim on the basis that the defendants did not owe the plaintiffs a duty of care, and that the damages sought were of too speculative and uncertain a nature. The Court of Appeal allowed the plaintiffs' appeal. The House of Lords decided by a majority that the defendants' further appeal should be dismissed.
In reaching this conclusion, Lord Goff of Chieveley, with whose opinion Lords Browne-Wilkinson and Nolan concurred, was strongly influenced by consideration of the position in other legal systems, and by the policy considerations that had been advanced by academic writers on the subject. Legal systems varied, depending on their particular history and characteristics, as to whether a solution was based on tort or contract. Lord Goff believed that a tort-based solution was most suited to the English legal environment. Nevertheless, he was conscious that this conclusion involved the recognition of a new category of claims in the law of tort, whose precise ambit remained to be explored.
This approach was endorsed by Lord Browne-Wilkinson, who emphasised the incremental development of special classes of claim in the law of tort. Lord Nolan accepted that the facts fell within recognised principles of the law of tort.
A strong dissent was delivered by Lord Mustill, with whom Lord Keith of Kinkel agreed. He examined the possible application of traditional rules of contract and tort to the fact situation before the court and was unable to find a way of accommodating the claims of the plaintiffs which was consistent with principle and did not lead to an unjustified extension of possible liability.
Two of the following comments on the case take up the problem of the contract/tort interface and consider the way that the problem has been addressed from the perspective of French, Belgian and Dutch law. The third comment approaches the facts from a quite different perspective and examines the implications of the fact that the plaintiffs' claim relates to a matter of succession. This fact gives rise to policy considerations that ought to be borne in mind when considering how far the imposition of liability in contract or tort is appropriate.
All rights reserved