by Professor Lesley King, College of Law, London


Where there's a will

There are interesting cases in two different areas this month. Sifri v Clough and Willis [2007] WTLR 1453 illustrates the importance for solicitors of taking instructions from the client rather than a third party.



The deceased died on 4 March 2001, aged 84. He had remarried in 1977 after the death of his first wife. In November 1998, he made a will leaving some property to his second wife for life and the balance to his daughter, the claimant. He appointed the claimant and his second wife as executors.



In 1999 and 2000, a solicitor made two new wills for him on the instructions of the second wife. The claimant challenged both wills on the grounds of lack of testamentary capacity, undue influence and lack of knowledge and approval (the latter ground added at trial stage). She succeeded in establishing lack of knowledge and approval, but failed to establish the other grounds. Was she entitled to recover any or all of her costs from the solicitor who had prepared the wills?



Mr Justice Roger Kaye held that she could not recover costs incurred in pursuing a 'wholly unreasonable claim based on lack of testamentary capacity and undue influence' but could recover costs based on lack of knowledge and approval. He said: 'In my judgment, if a solicitor does fail to take instructions from the proposed testator, does take them from a third party and does not check to see he has understood his instructions properly and, moreover, as alleged in this case, does not keep a proper note of his instructions, it is reasonably foreseeable that a challenge to whatever wills are executed as a result will in turn ensue and the costs thereby incurred are also foreseeable.'



The case is also interesting for the judge's comments on the fact that problems arose in the ordinary administration of the estate while the attention of all parties was on the probate dispute. There were losses resulting, among other things, from the failure to cash in premium bonds after the expiry of 12 months from the date of death and the failure to invest in high-interest accounts.



It was not proved that these losses resulted from the negligence of the solicitor, but the judge made the following sensible suggestion: 'Where a dispute emerges over which will is valid, there is much that can be done to protect the estate pending the outcome of the probate action, including the appointment of an interim receiver or administrator pending action.'



Cases on proprietary estoppel keep on coming at a furious rate. The necessary elements of a claim for proprietary estoppel are:

l One person gives an assurance;

l which is relied upon by another;

l to his or her detriment; and

l to such an extent that it is unconscionable for a court not to grant relief.



If these elements are established, the court must then decide the most appropriate form for relief to take. An important principle that has emerged from recent cases is that once the elements of an estoppel are established, the court will do the minimum necessary to do justice to the claimant.



Two points were at issue in Thorner v Curtis [2007] EWHC 2422: is an actual promise or representation required? If the claimant established the elements of an estoppel claim, what would it be proportionate to give him?



The deceased was a Somerset farmer from a farming family. He was described as a man of few words who hardly ever spoke in direct terms. The claimant was a second cousin who worked exceptionally long hours on the deceased's farm for no pay. Witnesses described him as giving a huge amount of assistance to the deceased over a period of 30 years and as 'essential' to the running of the deceased's farm. He helped the deceased with his paperwork as well as with manual labour. Witnesses commented on the fact that the deceased regarded himself as entitled to help from the claimant and expected him to do whatever was asked. They also commented on the claimant's 'indefatigable personality' and his outstanding integrity.



Various comments were made by the deceased which led the claimant to hope that he might inherit the farm, and in 1990 when the claimant had received a job offer from a friend, the deceased gave him two life policies and said: 'These are for my death duties.'



The judge found that this remark and conduct amounted to a representation that the claimant would inherit the farm and strongly influenced his decision not to accept the offered job. There was further encouragement from the deceased's behaviour in the following years, both in conversations with the claimant of the 'After I'm gone do/don't do XYZ' variety and various comments to third parties indicating that the claimant would carry on the farm after the deceased's death.



The deceased died intestate. He had made a will in 1997 making various pecuniary legacies and leaving the residue to the claimant, but he revoked it in 1998 after a disagreement with one of the pecuniary legatees and never made another.



John Randall QC sitting as a deputy judge held that the deceased's words and conduct were sufficient to raise expectations in the claimant, even though there was no one occasion where completely clear words were said. He relied on a number of cases, including Taylors Fashions v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133, where Justice Oliver said that the question is 'whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment'.



What should he receive? The farm was worth about £3 million and there was a further £650,000 in bank deposits. It was proportionate for the claimant to receive the whole of the farm, the value of which was largely due to his efforts and contribution over the years. However, the non-agricultural assets should be dealt with under the intestacy because it was the duty of the court to do the minimum necessary to achieve a proportionate result.