Solicitors’ negligence and the role of expert opinion
Janette Hamilton v Campbell Smith LLP
Edinburgh Sheriff Court
12 January 2016
Experts disagree on the extent of a solicitor’s duty of care when instructed by a client to draft a will. Sheriff O’Grady notes that he is bound by the approach set down in Hannigan v Lanarkshire Acute Hospital NHS Trust (2012) CSOH 152, that is when presented with differing expert opinion, the court is not in a position of choosing between experts unless the situation is truly exceptional.
The Pursuer in this case, a disappointed beneficiary, alleged that the Defender had been negligent in failing to check that her late Aunt had title to the property that she purported to bequeath to her in her final will.
In 2004, Mrs Novak instructed the Defender to draft an updated will. She provided clear and unequivocal instructions to the Defender to include a bequest of her whole right, title and interest in the property to the Pursuer, her niece. Unbeknown to the Defender solicitor taking the instructions, Mrs Novak had in fact disponed the property to herself and a different niece ”equally between us and to the survivor of us” four years earlier. As such the 2004 bequest to the Pursuer failed. The survivorship destination in the disposition could have been evacuated by declaration in the will being made under section 30 of the Succession (Scotland) Act 1969.
The Pursuer alleged that the Defender had a duty to check the title deeds to the property (which were in the Defender’s title safe) prior to drafting the will. She alleged that the Defender’s failure to do so was negligent and caused her to lose a one half share in the property.
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