Baker v Baker [2008] WTLR 565 illustrates an increasing tendency for probate cases to involve a number of different claims.

While terminally ill in hospital with liver disease, Mr Baker executed a will prepared by his brother, Richard. The will appointed Richard as executor and gave the estate to his cohabitee, Mrs Hazel, leaving nothing to his daughter, Cassandra.

Mr Baker had told Richard that he wanted to make a will leaving ­everything to Mrs Hazel, provided she also made a will leaving everything equally to Cassandra and her own daughter. He had had this idea for some time and had discussed it with Mrs Hazel, but she had found the idea of making a will too morbid. He was perfectly clear that he would not make a will unless Mrs Hazel did so too.

Richard did not feel that a solicitor was necessary to prepare the wills, and prepared them himself for Mr Baker and Mrs Hazel using a ­stationer’s will form. Mr Baker ­executed his will. Mrs Hazel did not execute her will until the week ­following Mr Baker’s death.

Paul Girolami QC, sitting as a deputy judge, found the will was invalid for lack of testamentary capacity. His ­finding was based in part on medical evidence from Mr Baker’s consultant who had, at the time the will was ­executed, advised that Mr Baker lacked the capacity to deal with legal ­documents. It was also significant that Mr Baker had executed the will ­without asking whether Mrs Hazel was executing one in similar terms. The judge took the view that this was so different from Mr Baker’s attitude the day before, when he had been adamant that it was both or neither, that it indicated lack of capacity.

Mrs Hazel made claims against the estate on the basis of:

  • proprietary estoppel; and
  • Inheritance (Provision for Family and Dependants) Act claim.

The proprietary estoppel claim was based on the fact that Mrs Hazel and the deceased had agreed that they would pool their resources. She had sold her own property and moved in with the deceased. She claimed that Mr Baker had given an assurance that he would provide for her and had ­suggested making reciprocal wills, something she had not felt able to do.

The court held that the necessary elements for a proprietary estoppel claim were not present. It was clear that Mr Baker was only willing to make provision for Mrs Hazel if she responded by making a will leaving the combined assets to the two daughters. She did not do this and, therefore, had no claim on his assets when he died.

So far as the Inheritance Act claim was concerned, Mrs Hazel had been living as the wife of Mr Baker for more than two years before his death, and was therefore qualified to apply for financial provision for maintenance under section 1(1)(ba) of the act.

Mrs Hazel’s financial resources were very limited. She needed a place to live and access to a reasonable ­quantity of capital from which she could supplement a limited income. However, balanced against her needs was the fact that Mr Baker had loved Cassandra and wished also to make provision for her too.

In the circumstances, it was ­appropriate to award Mrs Hazel a life interest in Mr Baker’s house and its proceeds of sale. The balance of the assets would go to Cassandra on the deceased’s intestacy.

Beneficiary liability

Rind v Theodore Goddard [2008] WTLR 699 is only an interlocutory decision dismissing an application by solicitors for summary judgment. However, the issues involved are extremely important, relating to the circumstances in which it is appropriate to extend White v Jones liability to beneficiaries.

Mrs Rind, the deceased, had given away a valuable property during her lifetime. On professional advice, a loan made to Mrs Rind to meet capital gains tax on the disposal had been secured on the property. This, arguably, gave rise to a ­reservation of benefit resulting in a substantial ­inheritance tax liability.

The deceased’s son was both a ­personal representative and a ­residuary beneficiary of his mother’s estate. He paid the inheritance tax and sought to recover it from his mother’s professional advisers. His claim was expressed to be as residuary beneficiary and not as personal ­representative.

The professional advisers alleged that the claim should be struck out because they owed no duty of care to the beneficiary. Liability to a beneficiary arises only where the estate has no claim because it has suffered no loss or any money recovered by the estate would go to other persons and not to the intended beneficiaries. If the court did not extend the liability of the advisers to the intended beneficiary there would be an undesirable lacuna in the law (see White v Jones [1995] 2AC 207). Here they claimed the estate had a cause of action (subject to a possible limitation defence) in both contract and tort, so there was no lacuna. The action should have been brought on behalf of the estate.

Morgan J refused to dismiss the claim on this basis. The Court of Appeal in Daniels v Thompson [2004] WTLR 511 had held on very similar facts that the deceased client had ­suffered no loss and that the claim brought on her behalf was bound to fail. If that decision was correct there was a lacuna, resulting in a liability to the beneficiary.

A further issue would have to be considered if the case went further. The negligence complained of did not relate to the making of a will but to general estate planning. The deceased’s final will was made after the securing of the loan. Can advisers be held to owe a duty to those who would benefit from effective estate planning? At the time of the original transaction the deceased had not even made her final will. The Court of Appeal said in White v Jones that ­liability is to the particular beneficiary that the testator intended to benefit through the particular will, and not to an indeterminate class of beneficiaries.

Morgan J said that while the claim might well fail on this basis at trial, it would not be right to dismiss the claim on this ground on a summary application.