Category: Insurance case law · Reviewed by Simon Temme, Account Executive · Last reviewed June 2026
House of Lords authority establishing that a solicitor instructed to prepare a will owes a duty of care to intended beneficiaries who suffer loss as a result of negligent delay or error.
The testator, Mr Barber, was an elderly man who had fallen out with his two daughters, the claimants Mrs White and Mrs Heath, in 1986 and made a will which cut them out. The family was later reconciled, and on 17 July 1986 Mr Barber instructed his solicitors, Philip Baker King & Co (the firm represented by Mr Jones), to prepare a new will under which each daughter would receive a legacy of £9,000.
The instructions were taken by the solicitors but no action was taken to prepare a new will. Despite reminders from family members, the firm did not draw up the new will or arrange execution. On 14 September 1986, some two months after instructions had been given, Mr Barber died without having signed a new will. His existing will took effect and the daughters received nothing.
The claimants sued the solicitors in negligence, alleging that the delay in preparing and arranging execution of the new will was a breach of the duty of care which the solicitors owed not only to the testator (whose estate had suffered no loss, the estate being unchanged) but also to them as intended beneficiaries whose legacies were lost as a direct result of the delay.
The defendant firm relied on the orthodox principle that the duty of a solicitor in will-drafting was owed only to the testator, the client under the retainer, and not to third-party intended beneficiaries with whom no contract or assumption of responsibility existed. The case raised the central question of whether the law of negligence could bridge that gap to provide a remedy where the testator’s estate had no loss and the beneficiaries had no contractual or proprietary remedy.
The Court of Appeal (by majority) found for the claimants, and the firm appealed to the House of Lords.
The principal issue was whether a solicitor instructed by a testator to prepare a will owes a duty of care in tort to intended beneficiaries who suffer financial loss as a result of negligent delay or error in the preparation or execution of the will. The case required the House of Lords to confront a classic “lacuna” in the law: the testator’s estate suffered no loss (it received exactly what the unchanged earlier will provided), while the intended beneficiaries suffered a clear loss but had no contract with the solicitor and no proprietary interest in the estate. If no duty was owed to the beneficiaries, the solicitor’s negligence would go unredressed despite causing real loss.
A secondary issue was whether, if a duty was owed, it could be reconciled with the orthodox principles of pure economic loss, assumption of responsibility, and proximity established in Hedley Byrne v Heller and Caparo Industries v Dickman.
The House of Lords (Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Nolan; Lord Keith of Kinkel and Lord Mustill dissenting) dismissed the appeal and held that the solicitor owed a duty of care to the intended beneficiaries.
Lord Goff, giving the leading speech for the majority, founded the duty on a principled extension of the Hedley Byrne assumption-of-responsibility doctrine. The solicitor assumed responsibility to the testator to draft and procure execution of a will making the legacies. The intended beneficiaries were clearly identified, and the testator’s reasonable expectation — and the solicitor’s professional understanding — was that the beneficiaries would benefit from competent performance. The law should not leave such a manifest injustice without remedy where the only loss-bearing party (the disappointed beneficiary) is precisely the party the retainer was intended to benefit.
Lord Browne-Wilkinson and Lord Nolan agreed, emphasising the policy considerations: there would otherwise be a serious gap in solicitor accountability in will-drafting, with the negligent solicitor escaping liability because the testator (the contractual client) suffered no loss. Lord Keith and Lord Mustill dissented on the orthodox grounds that the duty of care should be confined to those in a direct contractual or quasi-contractual relationship.
The case was therefore remitted on the basis that the solicitor’s duty extended to the beneficiaries and damages were recoverable accordingly.
A solicitor instructed by a testator to prepare a will owes a duty of care in the tort of negligence to intended beneficiaries identified in those instructions. Where the solicitor negligently fails to prepare or arrange execution of the will, and the testator dies as a result with the legacy ungranted, the disappointed beneficiary has an action in negligence for the lost legacy. The duty is founded on an extension of the Hedley Byrne assumption-of-responsibility principle to fill the gap where the testator’s estate has no loss but identifiable beneficiaries have suffered.
White v Jones is the leading authority on solicitors’ liability to disappointed beneficiaries and has profoundly shaped solicitors’ professional indemnity (PI) exposure in will-drafting, probate and estate-planning work. The decision created an entirely new category of claim — third-party beneficiary claims — that did not exist before 1995.
For PI insurers, the decision means that solicitors who draft wills, lasting powers of attorney, trusts and estate-planning structures owe potential duties to a wide class of intended beneficiaries. Delay in implementing instructions, error in execution, failure to attest correctly under section 9 of the Wills Act 1837, and other negligent acts can all expose the firm to claims years (sometimes decades) after the negligent act. Limitation is governed by section 14A of the Limitation Act 1980, with the cause of action accruing on the testator’s death.
The decision drove specific changes in conveyancing and probate practice. Firms now use systematic file-opening protocols, time-stamped retainer letters, prioritisation of frail or elderly testators, and clear escalation rules for instructions taken close to death (the “deathbed will” scenario). PI insurers commonly require evidence of such systems at underwriting.
White v Jones also intersects with Esterhuizen v Allied Dunbar Assurance [1998] 2 FLR 668, Carr-Glynn v Frearsons [1999] Ch 326 (failure to sever joint tenancy) and Daniels v Thompson [2004] EWCA Civ 307. These cases collectively define the boundaries of the White v Jones duty.
For brokers placing solicitors’ PI, will-drafting is a category requiring careful aggregation analysis under SRA Minimum Terms. A single will-drafting failure can trigger multiple claims from multiple beneficiaries, with each potentially aggregating under the “related acts” tests in MTC clause 2.5 and the AIG Europe v Woodman line of authority.
By Matt Bartlett, Director, on 2026-06-06. Next review: 2026-12-06.
This entry is part of the Apex Insurance Wiki. Last reviewed by Matt Bartlett on 2026-06-06. Apex Insurance Brokers Limited, FCA FRN 724952, Companies House 07014570. Not regulated advice — consult your broker on your specific position.
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