Duty to check will

Humblestone v Martin Tolhurst Partnership (a firm) ChD TLR 27 February

The defendant’s solicitors drafted a will for Michael Fahy who executed it at home and returned it to the solicitors who checked it and pronounced it in order. However, after Mr Fahy’s death it was found that he had not signed the will. The claimant, who would have been entitled under the will had it been validly executed, sued the solicitors in negligence for not having identified the defects in execution. She succeeded on the grounds that the defendant owed a duty to Mr Fahy and a consequential duty to his beneficiaries to check that the document executed by him was properly executed. The duty arose for two reasons. First, it was apparent that the solicitors would not be supervising the execution of the will, and the retainer required the solicitors, when the documents were returned for safe keeping, to check that, on its face, and on the facts then known to them, its execution was ostensibly valid. It followed that the defendant was under a duty to check the ostensible execution of Mr Fahy’s will whether or not it had been asked. The second reason for the duty arising on the facts was that the solicitors assumed such a duty by in fact checking the will when it was returned.