Severing Tenancy & Duty of Care

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    The Cases of White v Jones [1995] and Ross v Caunters [1980] established the principle that a disappointed beneficiary can recover damages in negligence for failing to ensure a Will is correctly executed or for a delay in the preparation of a Will but the courts are prepared to go even further. The case of Carr-Glynn v Frearsons [1998] suggests that in relation to Wills this duty of care can be very extensive.

    In this case the testatrix had purchased a property for her sister to live in. She retained full ownership of the property until her sister’s eldest child became an adult, at which point the property was transferred into the joint names of herself and that nephew. The property was held as beneficial joint tenants.

    After a period of a few years the testatrix instructed the defendant firm to prepare a Will leaving her share of the property to her niece (the second child of the sister). The solicitor advised the testatrix on the necessity to sever the joint tenancy and asked whether she wanted the solicitor to obtain the deeds from the bank to check how the property was held.

    The testatrix said that she would check the deeds herself and no further action was taken by the solicitor. The Will was executed and, on the death of the testatrix, the property passed by survivorship to the nephew and the niece, who would have otherwise benefited under the Will, received no benefit. She sued the defendant firm for negligence for a breach of the duty of care to her, as an intended beneficiary, for failing to ensure that the joint tenancy was severed and failing to give effect to the deceased’s wishes.

    The Court of Appeal found that the actions of the solicitor had been insufficient and more should have been done to ensure that the terms of the Will were not frustrated by the terms of the joint ownership. The judgement in the case contained some important analysis of a Will writer’s duty in the Will making process where a joint property is involved. They stated that the ‘need to take care to ensure that the asset fell into the estate was integral to the carrying into effect of the testatrix’s intention’.

    They further stated that ‘on proper analysis, the service of a notice of severance was part of the Will making process’.

    The niece was successful in her action and the defendant firm was found to be negligent. She received, in compensation, the value of the half share in the property under the failed gift.

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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