Paola Fudakowska & Henrietta Mason analyse solicitors’ duties in estate matters
- What is the scope of duty of care in estate planning?
To what extent can a professional who is not a solicitor be liable to disappointed beneficiaries of an estate in relation to planning carried out during the deceased’s lifetime? This is the question addressed in Herring and Hartley v Shorts Financial Services LLP [2016] WTLR 1203—it is not quite as simple as it seems.
Duty of care
Prior to 1995 no duty of care was owed by a professional adviser to persons who were not his or her client. White v Jones [1995] 2 AC 207, [1995] 1 All ER 691 marked a radical departure, establishing a duty of care to the beneficiary of a will for negligence in the preparation of a will.
The White v Jones principle has been extended outside the will-making process to estate planning incrementally. While the court in White v Jones stated that the intended beneficiary of a lifetime gift would not be owed a duty, other cases since have implied that, in the right circumstances,
