Martin v Triggs Turner Bartons (a firm) & Ors [2009] EWHC 1920 (Ch)

[2009] EWHC 1920 (Ch)Case No HC05CO3915
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2009
Before
THE HON MR JUSTICE FLOYD
Between
ALISON MARTINClaimant(1) TRIGGS TURNER BARTONS (a firm)Defendants(2) TRIGGS WILKINSON MANN (a firm)Defendant(3) JUDITH JOYCE WYNNE WEDDERSPOONDefendant(4) TIMOTHY JOHN MARSHALL CATONDefendant
Henry Legge (instructed by Mishcon de Reya) for ClaimantMichael Waterworth (instructed by Fishburns) for DefendantsHearing Hearing dates: 1 st- 3 rd and 6 th- 8 th July 2009,
Judgment
[1]By this action, Dr Alison Martin (“Dr Martin”), the claimant and widow of Mr Philip Martin (“Mr Martin”), claims against the four defendants (who are firms of solicitors and individual solicitor partners) damages for alleged professional negligence arising out of the drafting of her late husband’s will, and alleged professional negligence in advising her, or failing to advise her, subsequent to his death. The two individual solicitors were also executors of Mr Martin’s will.[2]In mid December 1999 Mr Martin was terminally ill with cancer. He instructed the first defendant to draft a new will for him, his existing will having been home-made. His new, and last will was executed on 23rd December 1999. Mr Martin died some two weeks later on 7th January 2000 at the age of 56.[3]Under Mr Martin’s last will, Dr Martin took the house in Godalming known as “Tillies” which had been their home since 1986 and a life interest in the whole of Mr Martin’s residuary estate. There was to be a discretionary charitable trust lasting for twenty years following her death, with gifts over to charities of Mr Martin’s choice. The will contains an express power of advancement of capital:
“at any time and from time to time during the lifetime of my said wife my Trustees may raise any sum or sums out of capital which (taken as a fraction of the value of my residuary estate from time to time) do not exceed in aggregate the fraction which the sum of £100,000 is of my entire residuary estate at my death of the value of my residuary estate and pay or to apply it for the benefit of my said wife in such manner as they (being not less than two in number) shall in their discretion think fit and I DIRECT that during the lifetime of my said wife my Trustees shall have her comfort and well-being as their first and paramount consideration at all times.”
[4]The principal allegation of negligence is that this power of advancement was drafted negligently. It is alleged in broad terms that, instead of being drafted as a maximum of around £100,000, it should have provided that the Trustees could advance everything except £100,000. It was back to front. It was common ground that, if this was the case, the solicitors could be rendered liable to Dr Martin by virtue of the principle enunciated by the House of Lords in White v Jones [1995] 2 AC 207, even though she was not their client.[5]The last will named all the partners of the first defendant (which later became the second defendant) as executors. The grant of Probate was obtained by Judy Wedderspoon and Timothy Caton (the third and fourth defendants, and partners in the first and second defendants) who had together been involved with the file.[6]In 2002 Dr Martin intimated a claim for rectification of the will against the executors and the charities entitled in remainder. The action did not need to be commenced because it was compromised before the intended proceedings were issued. The deed of compromise, to which the charities entitled in remainder and the Attorney General (representing charity generally) were parties, resulted in a partition of the fund, 66.5% to Dr Martin and 33.5% to the charities. The parties paid their own costs. The costs of the executors came out of the fund.[7]In this action Dr Martin contends that, had the power of advancement been drafted in the manner contended for by her, she would have been able to secure a more favourable settlement of the intended rectification action.[8]The allegations of post-death negligence are these: a) A claim that Dr Martin was not, but should have been advised as to the limited nature of the power of advancement. The claim is brought on the basis that defendants assumed responsibility to give advice as executors. It is an alternative to the pre-death claim. I call it “the misapprehension claim”. b) A claim relating to the incorrect allocation of the redemption proceeds of the index-linked National Savings Certificates held by the estate. c) A claim relating to the failure of the third defendant to process Dr Martin’s claim to state bereavement benefits or give proper advice in relation to that claim.[9]Mr Henry Legge argued the case for Dr Martin. Mr Michael Waterworth argued the case for all the defendants.

Background : the drafting of the will

[10]Mr Martin was born on 13th September 1943. He married Dr Martin, who was his first wife, on 30th April 1987. He became ill in May 1999 and was diagnosed with cancer in August of that year. He had held a senior executive position in Unilever until 1993, when he retired, aged 50.[11]Dr Martin was born on 2nd October 1946 and worked as an occupational physician for BP. She had two children, one from each of two previous relationships: a daughter, Jane and a son, Wathik.[12]Mr Martin executed a home-made will on 8th June 1988, not long after his marriage to Dr Martin, making provision for his mother, small pecuniary legacies to a niece and nephew and others, £4,000 to charity and the residue to Dr Martin.[13]In the summer of 1999 the Martins, having earlier considered selling up and moving to France, decided instead to renovate their matrimonial home, Tillies, budgeting some £50,000 for this purpose, planning and hoping that it would provide a suitable environment for Mr Martin to recover in. Dr Martin gave up her job at BP in September to care for her husband, and in November her daughter Jane moved in to Tillies to help her mother and step-father.[14]In mid-December 1999 an appointment was made with Judith Wedderspoon of the first defendant, a firm of solicitors in Guildford that Mr Martin had used in the past. Mrs Wedderspoon went to Tillies on 16th December 1999 to take instructions. Mrs Wedderspoon met Mr Martin in his study, in the absence of his wife, who was elsewhere in the house.[15]It is quite clear from Mrs Wedderspoon’s notes taken at the meeting of 16th December 1999, and other evidence, that Mr Martin was fully in command of his senses and fully cognisant of the details of the family history and the extent of his and his wife’s assets. Dr Martin said that material such as this was his “comfort zone”. All the evidence suggests that Mr Martin was highly financially astute and readily able to understand the technicalities of financial arrangements.[16]Mrs Wedderspoon’s notes record that Mr Martin was concerned to make detailed provision for his mother. So far as Dr Martin was concerned she recorded:
“wants to leave Alison secure for her life. She is independently wealthy – age 53. Also wants Trustees to be able to donate to good causes.”
[17]The characterisation of Dr Martin as independently wealthy is a fair one. She had a property of her own in Putney in her sole name, and had been a highly paid worker in occupational medicine for many years. Moreover the pensions, which I am about to describe, would give her security for the future.[18]Mrs Wedderspoon gave evidence, which I accept, of the way in which Mr Martin explained to her his intentions in relation to charitable giving. Mr Martin explained to her that his principal concern after making provision for Dr Martin during her lifetime, was to create a discretionary charitable trust. He explained, with a sincerity which she found very moving, that his deepest regret was that during his lifetime he had done so little to assist people. His principal wish was for his Trustees to be able to assist in cases of natural disasters which had left people homeless and starving. He wanted his Trustees to ascertain which charities were particularly helpful in assisting victims, and to make a substantial donation to that charity earmarked for the victims of that disaster in a sum sufficient to make a real difference.[19]The notes also show that Mr Martin had an accurate picture which he conveyed to Mrs Wedderspoon of the income that his wife would receive in the event of his death. This would include a £35,000 per annum widow’s pension from his company. In her own right she would be entitled to a pension from her present and previous companies of £28,000 in another seven years.[20]There was a dispute about whether Mr Martin knew that Dr Martin’s job was being held open for her. I accept her evidence that she resigned. It is clear however that her company was reluctant to see her go. Mrs Wedderspoon’s note records that Mr Martin had told her that Dr Martin was “now with BP, has given that up for him. They don’t want to take her off the payroll”. Mrs Wedderspoon told me, and I accept, that Mr Martin had told her that he expected his wife to go back to work. I think that Mr Martin believed that his wife would wish to go back to work in the event of his death, but he would not have known that for certain, and would not have wanted her to feel obliged to do so. In fact she went back to work in March 2000.[21]Mrs Wedderspoon was also told that in the event of Mr Martin’s death before 60 he had life cover worth some £303,000.00. Dr Martin did not know about this. Mrs Wedderspoon’s notes record that the policy was neither in trust nor nominated, which was in fact incorrect as Mr Martin had specified that it should be split between Dr Martin and Mr Martin’s mother. In the end, all this money was paid to Dr Martin, no doubt because of valid concerns about Inheritance Tax if the money was paid to Mr Martin’s mother. When Dr Martin later received this money she made gifts to each of her children of £100,000. I do not think that Mrs Wedderspoon knew that this life insurance money would necessarily fall outside the estate, although I accept that she thought it likely that it would.[22]Mr Martin communicated to Mrs Wedderspoon his wish to leave only token legacies to Dr Martin’s children Jane and Wathik. He described Dr Martin’s daughter Jane as a “drifter”, and her educational history in terms which suggested, to Mrs Wedderspoon at least, that Jane had in his view been a rebel. He wanted to leave considerably more to the niece and nephew of his deceased brother, as he did not believe their fathers had left them anything.[23]Mr Martin concluded that his wife would be provided for by a life interest in the residue of his estate after the legacies which had been discussed.[24]Mrs Wedderspoon’s account is that she asked Mr Martin whether the Trustees should have power to advance capital. His response was that he could not see why she should need capital at all, given all the sources of wealth and income which she had. Mrs Wedderspoon impressed upon him that unforeseen changes in Dr Martin’s circumstances should be provided for. Having given some thought to it, Mr Martin said that it should be limited to half the capital. Mrs Wedderspoon’s notes record simply that “trustees should have power to advance capital”.[25]Following the meeting, Mrs Wedderspoon returned to the office to produce a first draft (“Draft I”). On returning there she met Mr Caton, her fellow partner and the fourth defendant, and outlined the instructions he had received. She asked him whether he would review the draft when it had been typed up, with particular reference to its tax implications. She then worked late on producing Draft I. Dr Martin, in Draft I, after specific legacies, was given a life interest in the residuary estate. There was, in Draft I, an unrestricted power of advancement of all of the capital of the residue. Mrs Wedderspoon says that the omission of the power of advancement was an error on her part, which she remembered either on the way home or the following morning. At that stage there was no specific bequest of Tillies: it followed that Tillies would form part of the residuary estate.[26]The following day Mrs Wedderspoon went down with the ‘flu, and telephoned Mr Caton, whom she asked to take over the file. She told him that the Will was on her desk, that it required amendment by limiting the power of advancement to one half. Mr Caton’s manuscript note confirms this.[27]On 20th December, Mr Caton amended Mrs Wedderspoon’s draft by incorporating a power of advancement limited to one half. On 21st December this draft (“Draft II”) was sent by him to Mr Martin. The power of advancement in Draft II contained a 50% restriction on the capital that could be advanced out of the residuary estate. The covering letter to Mr Martin explained:
“However, in this case the draft limits the capital which can be advanced to your wife in this way to one half of the value of your residue. Mrs Wedderspoon has asked me to say that this limit can of course be removed if you wish, but she has included it for your consideration – she has in mind that if your wife were, say, to apply to us for a payment of up to the whole of the capital, it would be difficult to refuse that request, particularly in view of the direction at the end of clause 7.(b), that we should also have your wife’s comfort and wellbeing as “first and paramount consideration” at all times;”
[28]Mrs Wedderspoon says that Mr Caton was mistaken in thinking that this was included in the draft “for… consideration”. She maintained that Mr Martin’s instructions were to include the restriction. Mrs Wedderspoon’s evidence was that she was specifically instructed to include a power of advancement limited to one half.[29]Mrs Wedderspoon was an impressive and very fair witness, and there is of course no other witness to the instructions that Mr Martin gave her on 16th December. Mr Legge invited me to hold that the documentary record suggested that there was no mention of any limitation on the power of advancement at the meeting that day, and that its inclusion was an afterthought, for consideration by the testator. If it had been mentioned at the meeting, it would have been recorded in Mrs Wedderspoon’s careful notes. She would have gone on to include it in Draft I. The letter also suggests expressly that the limitation had not been mentioned, albeit at second hand. In the end I accept Mrs Wedderspoon’s account. I accept that it was she who persuaded Mr Martin to include a power of advancement at all, and he who decided to limit it to one half of the estate. This accords with Mr Martin’s desire to ensure that there was a fund after Dr Martin’s death large enough to make significant charitable donations. It also accords with a secondary desire, at that stage, not to pass significant amounts of his estate via Dr Martin to Dr Martin’s children, whom he clearly felt to be less deserving than the charities. I accept Mrs Wedderspoon’s explanation of the documentary record that not everything that was said was written down, and that she had simply forgotten to write the limitation of the power of advancement into the will.[30]On receipt of the letter and Draft II on the morning of 23rd December, the Martins went through it together. Just above the paragraph I have set out above they wrote “House to Alison”. This reflected a discussion they had. Dr Martin pointed out that the house was their home, and should not go into the trust of the residuary estate, particularly as she had put money into it. They agreed that the will should be changed so that Tillies would be left to her absolutely.[31]According to Dr Martin, they also briefly discussed the power of advancement, noting that there was a 50% restriction on the amount of capital that could be advanced. She said that Mr Martin said to her that he did not know why it had been put in. She also said that she suggested it was something which they should discuss with the solicitor. I do not attach much weight to this conversation either way, even accepting it at face value: it is not clear to me whether Mr Martin’s uncertainty was said to relate to the amount of the percentage, or the existence of any restriction. If the latter, it is inconsistent with the evidence of Mrs Wedderspoon that it was Mr Martin who agreed reluctantly to a power of advancement, which I prefer. It is also surprising, if that was the purport of the conversation, that such an important matter was not mentioned in Dr Martin’s witness statement in the intended rectification proceedings. I think it far more likely that, in this conversation, the Martins decided to discuss with the solicitor the appropriate percentage in the light of the fact that the house was now to pass to Dr Martin absolutely. That conclusion accords with the marking “House to Alison” at the appropriate point in the Martins’ draft of the will.[32]Following a telephone conversation between Dr Martin and Mr Caton on the 23rd December, Mr Caton went to Tillies later in the day to take further instructions on the draft will as it then stood. Unlike the previous meeting with Mrs Wedderspoon, Mr Martin and his wife were both present at this meeting with Mr Caton. They went through Draft II, clause by clause. Mr Martin explained that, having read Draft II, he wanted to change it to make Tillies over to Dr Martin absolutely, something which he had intimated to Mr Caton over the telephone earlier in the day. Tillies represented a significant proportion of the overall estate.[33]Dr Martin’s account of the discussion in relation to clause 7 of Draft II was that the Martins were on a sofa at one end of the room and Mr Caton was at the other end. It was possible, if this was indeed the arrangement, that Mr Caton did not hear everything that was said. When it came to clause 7, she says that Mr Caton drew their attention to the limit of 50%. She says she reminded Mr Martin that they were used to living on £75,000 from her income on top of his, and that there was likely to be a shortfall. Having discussed the expenses of running Tillies, and that she was giving up her job, she says that Mr Martin said to her “Have it all…” In the end she says they came up with a figure of £100,000 as the figure which should be ring-fenced to go to charity, the trustees’ having power to advance everything else.[34]Mr Caton’s account was that when it came to clause 7 of Draft II, Mr Martin told his wife that her income could be expected to be around £75,000 per annum. Having asked Mr Martin to read over clause 7(b), Mr Caton then said that the direction at the end of the clause would make it difficult for the Trustees to refuse any request for an advance, and it would be best to assume that Dr Martin would receive the whole of any limit during her lifetime, i.e. half of the residue as the clause was then drawn. The more capital that went to his wife, the less would pass to the charities. On Mr Caton’s account, Mr Martin then said that, given that Tillies was passing to her outright and that Dr Martin had property of her own, the limit on the power of advancement should be £100,000. Mr Caton’s note on the draft will says “£100,000 worth”.[35]Mr Caton also says that he asked Mr Martin if he wished the £100,000 to be a fixed figure or to vary as a proportion of the value of the residuary estate. Mr Martin said he would want his wife to benefit from any increase. He says that he went over this again with Mr Martin, who had requested him to do so. Mr Martin, according to Mr Caton, asked what would happen if the limit of £100,000 was exhausted. He replied that once Dr Martin had received the whole of the proportion, the power was exhausted.[36]Mr Caton made the amendments to the will. He asked if he could do this on his own, and the Martins left him alone, except that daughter Jane brought him a cup of tea. He then asked Mr Martin if he could go through the will with him, which he did, with Mr Martin sitting close to him so that they could both go through the will together. Dr Martin disputes this account. She says she could see into the room from where she was (in the hall on the telephone contacting a witness), and Mr Martin was sitting alone. She says that Mr Martin never left the room. But this account is not easily reconciled with Jane’s evidence that she believed Mr Caton was on his own in the room when she brought him his cup of tea.[37]Mr Caton’s attendance note of the meeting, written after the meeting, reads so far as relevant as follows:
“We then discussed the power of advancement to his wife, and I made the point that his direction that her comfort and wellbeing should be our “first and paramount consideration” meant that it would be very difficult to refuse any request she made for a capital advance. He felt that the limit on capital advances should accordingly be £100,000 at present values;”
[38]The question of exactly what was said and done at the meeting between the Martins and Mr Caton on 23rd December 1999 formed the major factual dispute on this aspect of the case. Neither side expressly suggested that the witnesses of the other side were deliberately lying. Mr Waterworth went further and accepted that Dr Martin had genuinely formed the impression that there would be a power of advancement of everything except the £100,000.[39]On a matter such as this there is plainly scope for misunderstanding. It is a commonplace experience to find that, in the course of a conversation or meeting, people do not express themselves as fully as if they were writing letters or reports. It is entirely possible that in a discussion which must have involved reference to a limit or restriction of £100,000 for someone whose attention was not entirely focussed to pick up that it was a restriction on what could be advanced when what was meant was a restriction on what should be left. Usually, as a conversation or meeting progresses such misunderstandings are ironed out – but not always. The misunderstanding was not ironed out here, as it is now beyond dispute that Mr Caton and Dr Martin emerged from the meeting with different impressions of what Mr Martin had intended. The question is really: who made the mistake?[40]Mr Legge submitted that Mr Caton was an unsatisfactory witness, who had far too complete a recall of what must have been a routine matter, to be wholly credible. On the other hand, he submitted, Dr Martin could be expected to recall these important events in her life with greater accuracy. Moreover, he submitted that the defendants’ concession that Dr Martin obtained the impression that the power was to be everything but £100,000, lends support to her case that this is what Mr Martin actually meant: it is not likely that a wife would misunderstand a husband in these circumstances. He also submitted that if Mr Caton had explained the effect of exhaustion of the power in the way in which he said he had, it is inconceivable that Dr Martin would have formed the view she did of the power.[41]Mr Waterworth submitted that the surrounding circumstances supported Mr Caton’s account. He relied on the following factors: i) the prior context of the discussion of the power with Mrs Wedderspoon, which started with Mr Martin questioning the need for a power to advance capital at all, and only agreeing after discussion to include one limited to 50%; ii) the fact that Mr Martin knew that his wife was independently wealthy; iii) Mr Martin’s expressed desire to benefit charity to a substantial extent, arguably put at risk by a clause which would enable capital to be advanced to Dr Martin up to the last £100,000 (unless Dr Martin died before much of the capital had been advanced); iv) Mr Martin’s concern to protect the estate from his step-children; v) the amendment to cause Tillies to pass to Dr Martin absolutely, which could account for a desire to protect a greater portion of what remained.[42]Mr Waterworth also submitted that there was a degree of exaggeration in Dr Martin’s evidence about the frailty of her husband, something she had relied on to cast doubt on Mr Caton’s account of her husband’s movements at the meeting.[43]In the end I have concluded that it was Dr Martin and not Mr Caton who was correct about the intentions of Mr Martin. I summarise my main reasons below.[44]Firstly, the witnesses. Although I have already said I found Mrs Wedderspoon to be a good witness, I was less confident that I could rely on the detail of Mr Caton’s recollection. There were genuine oddities about his recollection of the layout of the room which conflicted with the account of Dr Martin, whose house it was and is. Moreover, unlike Mrs Wedderspoon, he had no proper attendance note: all that remains is his notes on the draft will, and some pages from a “counsel’s” note book which are admittedly incomplete. There were also some aspects of his evidence, relatively minor it may be said, where he changed previously confident statements (a coffee table became an Ottoman), or changed uncertain statements to more confident ones (he had said the attendance note was made on the evening or the following day, to a statement that it was made at 9.15 the following day). For these and other reasons, I cannot be very confident that his recollection of how the conversation went is fully accurate.[45]On the other hand, in relation to the gist of the critical conversation, I believe that Dr Martin’s recollection was accurate. I found her to be a genuine and honest witness. I think it is implausible that she would have misunderstood her husband in these circumstances. I do not think it is fair to discount her evidence for the reason Mr Waterworth gave.[46]Secondly, I turn to the overall probabilities. So far as charity is concerned, it is true that Mr Martin had expressed a strong desire to benefit charity to a substantial extent. But from the evidence I heard, I do not find it very plausible that Mr Martin would have wished to countenance a situation in which the interests of charity prevailed over those of his wife. His wish to donate to charity was subject to his desire to see his wife secure for her lifetime. Given that there was discussion of the adequacy of Dr Martin’s income, and that she was present and expressing concern, I think it unlikely that he would have wished to reduce rather than increase the 50% limitation on advancement.[47]Next I consider Tillies. It is true that the house was now going to Dr Martin. The house came with responsibilities of upkeep, however, which, had it remained as part of the estate, could have been maintained out of residue by virtue of a specific power in the will. I think both the Martins would have been concerned at the prospect of Dr Martin having to maintain Tillies out of her own income. They would not have viewed the passing of Tillies to Dr Martin as justifying a decrease in the power to advance capital. It would have been a factor justifying an increase.[48]The different perspective that the new provision concerning Tillies gave to the matter, also reduces the impact of the earlier discussion with Mrs Wedderspoon. It is also one thing to discuss matters in abstract: another to consider them in the presence of the beneficiary who is questioning whether the provision will be adequate.[49]Mr Martin had a good grasp of what Dr Martin’s income would be, but would also have appreciated that circumstances might arise where this would be inadequate. He does not appear to have known for certain that the life insurance money would pass into his estate or directly to her.[50]Although it is correct to infer that Mr Martin would not have wished his money to go to his step-children, he did not have any antipathy to them. I think it is clear that, when he came to give the instructions for the will, his concern was to make sure that the restriction on the power to advance capital did not hamper his trustees in looking after his wife. Her comfort and well being was, after all, to be their paramount consideration.[51]These various considerations lead me to believe that it was more probable that it was an increase from 50%, rather than a decrease, which was under consideration. I think it is likely that Mr Caton failed to pick up on the fact that the Martins had switched to talking about an amount which had to be ring fenced, as opposed to an amount which could be advanced. As to Mr Caton’s explanation of the effect of the limit, I think it is unlikely that this was explained in quite the precise terms which Mr Caton recalled. If that was so, it would not have been adequate to flag up the fact that he had misunderstood what was now being said.[52]Thus I conclude it was Mr Martin’s intention to extend the limit to everything but the last £100,000. It is not surprising that, at the end of a long and tiring meeting, Mr Martin did not pick up the error in the will. He was, at the time, on significant doses of diamorphine, and he would have been making, the evidence establishes, huge efforts to keep up in the earlier stages.

Events after Mr Martin’s death

[53]A copy of the will had not been sent to Mr Martin after it had been executed on 23rd December 1999. Dr Martin asked for a copy to be sent to her on 10th January 2000, after Mr Martin’s death, but she did not look at it at that stage because she was consumed with other arrangements following her husband’s death. A copy of the will was sent to her on 12th January 2000.[54]Mrs Wedderspoon met with Dr Martin on 27th January 2000 to discuss the administration of Mr Martin’s estate. There was a further meeting on 20th October 2000. These meetings form the basis of the claims in relation to widow’s pension and the treatment of National Savings Certificates.

National Savings Certificates

[55]Mr Martin’s estate included a large number of National Savings Certificates. At the meeting of 27th January 2000 Dr Martin asked that the Savings Certificates be encashed at maturity and the proceeds be reinvested and that she continue to receive the tax free income.[56]On 12th September 2000 Mrs Wedderspoon suggested to Mr Caton that they meet Dr Martin to discuss the treatment of the National Savings Certificates. Her note to Mr Caton says:
“I think we are agreed that each holding should be cashed in as it matures. If we cash in certificates which have not matured, there will be a considerable loss, and I am sure that Dr Martin will object to this. The problem is of course that, as each certificate is cashed in, the Trustees then receive a considerable amount of tax free interest. If we pay this out as income, she will be taxed on it. The difficulty is that the Will gives us no power to accumulate income.”
The difficulty is that the Will gives us no power to accumulate income.”[57]Mr Caton doubted whether the beneficiary would be liable to tax. He also reminded Mrs Wedderspoon about the need to strike a balance between the interest of the life tenant and the remaindermen in relation to the National Savings Certificates.[58]The Savings Certificates were again discussed on 20th October. Mr Caton and Mrs Wedderspoon said that tax free interest would go to her, but the index linked element would be treated as an addition to capital. Dr Martin agreed to this approach.

State Widow’s Pension

[59]At the meeting on 27th January 2000 there was a discussion about State Pensions. Mrs Wedderspoon told Dr Martin that she believed that Dr Martin would not be entitled to a State widow’s pension. Mrs Wedderspoon agreed to write to the Department of Social Security on her behalf, but did not do so until 20 March 2000. In her letter she said that her firm acted in the administration of the estate. The letter states that Mrs Wedderspoon believed that Dr Martin was in touch with them direct concerning any widow’s pension payable, and asked for confirmation of this fact. The letter enclosed the death certificate. The DSS did not reply to Mrs Wedderspoon’s letter. Mrs Wedderspoon did not chase the DSS for a reply. Dr Martin did not ask Mrs Wedderspoon about the state widow’s pension again.[60]It appears that in September 2000 Dr Martin responded to an Inland Revenue enquiry about her pension income for tax purposes. In 2006 she received a letter from her husband’s company suggesting that she might be entitled to a widow’s pension. She followed this up with an application form which reported “After my husband’s death I had a conversation with his lawyer who implied that I would not receive any state benefits. I completed a widow’s pension enquiry … I reported that I received no pension. I never heard back and assumed I had no entitlement.”[61]Had Dr Martin applied within three months of her husband’s death she would have been entitled to a widow’s pension. As she did not, she did not get one.

The request to discuss income

[62]Dr Martin telephoned Mrs Wedderspoon in September 2000 saying that she wanted a meeting to discuss her income position. She explained that she was having alterations done at Tillies, amongst other things to create a new “dog area”. The cost would be about £100,000.

The Chelsea Garden sponsorship

[63]Between March and August 2001 Dr Martin was concerned to recover from the estate £25,000 which she claimed her husband had committed to sponsor a garden at the Chelsea Flower Show. The details of that do not matter, save that Mrs Wedderspoon required to be satisfied that this was indeed a commitment her husband had made. In a telephone conversation on 23rd August 2001 Dr Martin said that if the £25,000 could not be recovered from the estate, she would want to take a capital advance from the estate in the following year. In a letter of 30th August 2001, Mrs Wedderspoon pointed out that there was a “complicated formula in Mr Martin’s Will limiting the total of capital advances which can be made to you. In our view, if the payment can be shown as the satisfaction of an existing estate liability, this would be far more satisfactory for you in the long run".[64]Dr Martin did not pursue the £25,000 payment, by either method. Instead she made a donation to 25 individual employees at her company who each in turn made a donation to the charity.

The French property

[65]Dr Martin first mentioned her intention to buy a property in France to Mrs Wedderspoon in the telephone conversation of 23rd August 2001. It was partly because of this that she mentioned the “complicated formula” in her letter of 30th August. She said that she assumed at the time that this advance would be of the same order as the Chelsea donation. Mrs Wedderspoon wrote to Dr Martin on 12th of December 2001. The Trustees were holding cash on deposit following the closure of some French franc bank accounts. Given that Dr Martin had given advance notice that she might be requiring a capital advance in order to buy a French property, Mrs Wedderspoon pointed out that it would make no sense to invest this money only to have to sell holdings, possibly at short notice later. She therefore enquired whether Dr Martin was still thinking of buying a property and, if so, what sort of amount she might be asking the Trustees to advance.[66]Dr Martin telephoned Mrs Wedderspoon on 9th January 2002 to tell her that she would need a £200,000 advance from the trust. Mrs Wedderspoon did not respond at that time that this would exceed the amount which could be advanced under the power of advancement in the will.[67]In an exchange of memos dated 10th and 15th of January 2002 Mrs Wedderspoon asked Mr Caton whether the formula in the will would allow the trustees to advance £200,000 to Dr Martin. Mr Caton replied that this would only be possible if the value of the estate had doubled since the date of death. He suggested and that he would be reluctant to advance more than £75,000 until final accounts had been prepared for the estate.[68]In an e-mail to Mrs Wedderspoon of the 6th February 2002 Mr Caton said that Dr Martin "might be getting another unpleasant eye opener when she hears about the capital advance position, and I wonder if we might have some problems then too".[69]In the end it was not until 28th June 2002 that a letter was sent to Dr Martin explaining the limitation on the power of advancement with up-to-date estate valuation figures. Mrs Wedderspoon and Mr Caton had decided to wait until they had finalised values for the residuary estate, as these were necessary for the calculation, before explaining the position to Dr Martin. On the morning of 1st July 2002, Dr Martin telephoned Mrs Wedderspoon. Dr Martin complained that she believed the will to have been wrongly drawn. She said Mr Martin's intention was that a limited amount was to be reserved for charity, with the balance of the residue in being available for Dr Martin. Dr Martin telephoned Mr Caton on 3rd July 2002. Mr Caton advised Dr Martin to take independent legal advice. The pre-death claim Was the will drafted back to front?

The pre-death claim

[70]In the light of the conclusions of fact I have reached, I have concluded that the will was not drafted in accordance with Mr Martin’s instructions.[71]It is common ground that a duty of care was owed to Dr Martin to draft the will in accordance with the testator’s intentions so far as they were intended to benefit her. In my judgment that duty was breached by the failure to draft the will in accordance with Mr Martin’s instructions. It was not seriously argued that if I decided the facts as I have, that any other conclusion was realistic.

Has the breach of duty caused Dr Martin loss?

[72]Mr Legge argued that the failure to draft the will in accordance with Mr Martin’s instructions caused Dr Martin loss, because the right she acquired under the will was less valuable than the right she should have received had the will been properly drafted.[73]It is clear that a failure by a draftsman to secure for the person for whose benefit he is acting a valid right of action can be treated as giving rise to a loss: see Moore v Ferrier [1988] 1 WLR 267 at 279-280. The difference here is that the power of advancement was a discretionary power in the trustees to advance capital. Does that mean that Dr Martin suffers no loss until she can prove that she has a valid call on the exercise of that discretion which is met by the limitation on the power of advancement? The question is important, because if no loss is suffered at the date of execution of the will, it may be said that the case is concerned only with the loss of a chance, and the principles set out by the Court of Appeal in Allied Maples v Simmons & Simmons [1995] 1 WLR 1602 would come into play.[74]In my judgment it is correct to say that Dr Martin suffered a loss by the negligent act in this case with effect from the death of Mr Martin. The value of the benefit which she actually received was reduced as compared with that which Mr Martin intended. One way of looking at it is that she has lost the right to the Trustees’ consideration of any request which exceeded the £100,000 fraction set by the incorrectly drafted will. Another way of putting it is that she was placed in a worse position in relation to the remaindermen if she wished to achieve a partition of the estate with them. It may be difficult to place a value on the amount of that loss: but that is a matter of quantification, and does not call into question the fact that a loss was sustained.

What is the quantum of Dr Martin’s loss?

[75]Mr Legge submits that the loss should be valued by reference to what Dr Martin could achieve on a partition of the estate were the will to have been drafted with a full power to advance (up to the last £100,000). She will have to give credit for what she has already achieved by means of the deed of compromise.[76]The deal in the Deed of Compromise of the threatened rectification proceedings was arrived at in the following way. First Mishcon de Reya, solicitors for Dr Martin, wrote a letter dated 17th November 2003, the main points of which were these: i) The actuaries had agreed on a joint valuation of Dr Martin’s life interest in income as representing 55.9% of the fund; ii) As to the power to advance capital in its unrectified form, Dr Martin’s solicitors suggested that Dr Martin would be entitled to 7.45% of the capital. Applying the actuaries’ percentage to the remaining 92.55% (i.e. after a notional capital advance at the beginning) one arrives at 51.75% (55.9% of 92.55%). iii) Thus on the unrectified will, Dr Martin’s share would be 59.2% (7.45 + 51.75). iv) On the other hand, with a rectified will, her share on a partition would be much greater. The capital advance would be, according to her solicitors, 92.55% (100% -7.45%) and the life interest would be the actuaries’ percentage of what is left (55.9% of 7.45%). v) Thus on the rectified will, Dr Martin’s share would be 96.71%. vi) In a spirit of compromise they offered the unrectified figure plus 10%, i.e. 69.2%.[77]Withers, solicitors for the charities entitled in default and the Attorney General acting on behalf of charity in general, responded by pointing out that Dr Martin was not entitled to the capital advances up to the maximum, but only to the Trustees’ consideration taking into account the direction as to well being and comfort. They contended that Dr Martin’s entitlement should be discounted because she had no absolute entitlement, as well as for accelerated receipt. They accepted that if the power was limited as in the unrectified will the likelihood would be that the whole of the 7.45% would be advanced, but they pointed out that the same did not apply if the power was rectified to include all but 7.45%. They accordingly suggested settlement on the basis of a 50% advance of capital which they claimed erred on the side of generosity: a figure which they said was “plucked out of the air”.[78]Withers calculations accordingly went as follows: i) Starting from 50% and applying a discount for early payment means a capital advance of 45% of the fund; ii) Applying the actuaries’ percentage to the remainder gives 27.95% (50% of 55.9) for the life interest in income; iii) This gives a maximum percentage on a rectified will of 45 + 27.95% or 72.95%; iv) They suggested a small discount to 58.5% (from Mishcon’s figure of 59.2%) to represent the percentage for the unrectified will. v) They proposed splitting the difference between 58.5 and 72.95 (65.725%) but then suggested adding about 1% to arrive at the 66.5 33.5 split.[79]It was on this basis that the parties settled on the 66.5/33.5 split, each side bearing their own costs and the trustees costs to come out of the fund.[80]This correspondence is the only material I have on which to form a view as to the value of what Dr Martin lost. Clearly, had the will been in rectified form, Withers would not have been able to propose splitting the difference between the unrectified and rectified figures (58.5 and 72.95). Mr Legge submitted that I should value Dr Martin’s loss, at a minimum, as the upper figure.[81]Mr Legge invited me to say that the interests of the charities entitled in remainder were very remote and that a fair partition would be 90:10. I see no basis in the evidence for this extreme position.[82]The problem I face is that the evidence as to the extent to which the power of advancement would need to be, and could validly be exercised is very scant. It is true that Dr Martin made a request for £200,000, which suggests that the limit of £100,000 would certainly have been exceeded. It is also true that the direction at the end of the power of advancement would mean that any request which could fairly be said to go to Dr Martin’s comfort and wellbeing would be difficult to refuse.[83]On the other hand there would be good grounds for Dr Martin to exercise restraint in the requests she made to the Trustees. Firstly she would, I believe, have respected her husband’s desire to benefit charity. Secondly she would have been aware that depleting the capital would have long term effects on her income in later life.[84]Despite the fact that Withers’ figure of 50% for the extent to which the power of advancement would be exercised was described as generous, I think it is the most rational figure to take. This suggests that half the £1.4 million in residue would have been advanced. Dr Martin certainly did not argue with it at the time. I think it reflects, fairly the competing considerations in the present case.[85]Overall therefore, I think that the fair result is to take Withers’ offer pre-discount (say 73%) as the partition that would be achieved. On this basis the damages amount to the difference between this and 66.5%, that is to say 6.5% of the fund.[86]Dr Martin also claims the costs of the rectification proceedings and the appropriate percentage of the Trustees’ costs which have come out of the estate.[87]Mr Waterworth contended that these costs were not recoverable. His argument went like this: i) Had Dr Martin pursued a rectification claim and succeeded, ordinarily there would have been an order for her costs and the Trustees’ costs to come out of the estate; ii) The Trustees would then have been under a duty to pursue the solicitors for negligence in drafting the will; iii) That is a claim which belongs to the Trustees, not to Dr Martin; iv) As Worby v Rosser [2000] PNLR 140 shows, White v Jones liability exists to fill the lacuna in the law where the beneficiary suffers loss but the estate does not: where the estate suffers a loss which it can recover, the beneficiary has no claim; v) Mr Waterworth recognises that this analysis produces a somewhat odd result in the present case, because the claim in question would be by the defendants as trustees against the defendants as solicitors; vi) But he says, the answer is more sensible in the present case because there is no order for costs – merely a compromised claim – and the treatment of costs was dealt with in a compromise between Dr Martin and the estate.[88]I reject this analysis. I have held that Dr Martin has a good claim in negligence against the defendants for her loss. So far as her own costs are concerned these are properly viewed as the reasonable costs of mitigating her loss. I think it is wrong to regard these costs as the subject of an independent White v Jones claim. Furthermore she has not compromised her claim against the defendants for these costs.[89]So far as the Trustees’ costs are concerned, these have depleted the estate, and caused (in a “but for” sense) Dr Martin to receive on a partition a share of a smaller estate. This loss is, in my judgment, a foreseeable consequence of the breach of duty established. Dr Martin has not compromised this head of claim either.[90]It seems to me that this claim to loss succeeds as well. Accordingly I will award damages under these heads. Mr Waterworth argued that I should send these for assessment. That would in effect create a split trial where none had been ordered. I think I should assess reasonable sums.[91]So far as Dr Martin’s costs of the rectification claim are concerned, these were £56,800. Against this, Mr Legge proposed a £10,000 credit to allow for the negotiation of the partition, which he accepts is not recoverable, leaving £46,800. I think I should allow slightly more discount to account for the partition, which involved actuarial evidence as well as legal advice and correspondence. I award £40,000 under this head.[92]So far as the Trustees’ costs were concerned, these were around £20,000. I allow 73% of this claim, or £14600. The post-death claim The pension

The post-death claim

[93]I have held that Mrs Wedderspoon did indicate to Dr Martin a belief that Dr Martin was not entitled to a widow’s pension, and undertook an enquiry to find out whether this was so. She did not follow up this enquiry. It is common ground that Dr Martin was entitled to a pension, but lost the opportunity to claim it.[94]Ordinarily, an executor does not owe a duty to advise a beneficiary in connection with the affairs of the beneficiary: see Cancer Research Campaign v Ernest Brown [1998] PNLR 592; [1997] STC 1425. But as Harman J pointed out in that case, that rule is subject to the principles about assumption of responsibility and reasonable reliance.[95]Mr Legge put his case in terms of assumption of responsibility and reasonable reliance. He submitted that Mrs Wedderspoon assumed responsibility to advise Dr Martin about the widow’s pension, gave incorrect advice, left her client in a state of misapprehension believing that the matter was being investigated and did nothing to follow it up. He submits that Dr Martin relied on Mrs Wedderspoon’s acts and omissions.[96]Mr Waterworth submitted that the subsequent history shows that Dr Martin did not take Mrs Wedderspoon’s answer as indicating that she was not entitled to the pension. When she completed the Revenue form she still thought that she might be entitled to the pension. Alternatively, if that is incorrect, then the same facts show contributory negligence on the part of Dr Martin in not following up the enquiry herself.[97]I think Mrs Wedderspoon did assume responsibility to advise Dr Martin about her pension entitlement, and to take steps to find out whether her belief in the non-entitlement was correct. I also accept that the circumstances of the relationship were such as to make it reasonable to rely on Mrs Wedderspoon, so as to create the necessary duty of care. I accept Mrs Wedderspoon’s evidence that that this was done as something of a favour, but it was done in a professional context in which it was reasonable for a recipient of the information to assume that it would be done with due care.[98]Mr Waterworth’s points go to whether there was any reliance in fact. I think there was reliance here. Dr Martin must have gone away from the meeting thinking that there was nothing further she needed to do until she heard from Mrs Wedderspoon or the DSS. As she did not hear, she did nothing, and lost her claim to entitlement. She had to fill in the widow’s pension enquiry in any event, this does not show that she had ceased to rely on what she had been told: if anything it shows the reverse.[99]Accordingly I consider that there was a breach of duty. I decline to find any contributory negligence on the part of Dr Martin. Once responsibility had been assumed, there was nothing Dr Martin needed to do.[100]As a result, Dr Martin lost the benefits that would have been paid between 2000 and 2007, which are valued at £25,047.

The National Savings Treatment

[101]The first question is whether the agreed National Savings Treatment was incorrect. Should the index-linked element be treated as income and not capital?[102]The relevant terms and conditions of the National Savings Certificates provide: Index-linking, interest and tax relief 3. A Certificate grows in value by index-linking and interest at rates fixed for a specified period of time (e.g. two years, five years, etc) starting from the date of purchase. We call each period of time a "term". Each term will have its own "Issues" of Certificates issued in sequence and different interest rates apply to each issue within each term. … For details of how index-linking is applied to Certificates see paragraphs 11 to 13. … 5. A Certificate which qualifies as a Reinvestment Certificate and is cashed in before its first anniversary date will earn index-linking and interest for each complete month held. For other Certificates the amount due if cashed in before the first anniversary date will be the purchase price only. 6. The amount due when a Certificate is cashed in on an anniversary date, or less than one month afterwards, will be the relevant anniversary value (see Interest Rates leaflet). Anniversary values will be rounded to the nearest penny. 7. The amount due when cashing in a Certificate which has been held for at least one complete month from an anniversary date will be the anniversary value on that anniversary date plus: index-linking for each complete month from that anniversary date to the date of repayment; and 1/12th of the annual interest to each complete month held from the anniversary date. 8. In the event of a decrease in the Retail Prices Index the amount due when cashing in a certificate under paragraph 5 will not be less than the purchase price; under paragraph 6 will not be less than its value at the immediately preceding anniversary date (or its purchase price if cashed in on the first anniversary date) together with interest on that amount at the relevant rates of the year; and under paragraph 7 will not be less than its value at the immediately preceding anniversary date…. 10. Sums payable in respect index-linking and interest will be free of United Kingdom Income Tax and Capital Gains Tax. 11. An index-linked valuation under these terms and conditions will be related to the movement of the UK General Index of Retail Prices maintained by the Office for National Statistics, or any Index replacing their Index… 12. An index-linked value will be calculated as V x B/A where: ‘V’ is the value of the Certificate at the beginning of the index-linked period… ‘A’ is the Index figure applicable to the calendar month in which the first day of the index-linked period falls; .. ‘B’ is the Index figure applicable to the calendar month in which the final day of the index-linked period falls….” Index-linking, interest and tax relief

index-linking for each complete month from that anniversary date to the date of repayment; and

[103]There is no direct authority on the question of whether the index linked element of return on a National Savings Certificate is properly to be treated as an income or capital receipt. In re Holder [1953] Ch 468, Roxburgh J had to consider a question as to whether the interest under National Savings Certificates accruing before a testator’s death was income or capital. Roxburgh J considered that the sums received did amount to income unless they had been effectively capitalised by agreement between the testator and the Government, before his death. On his construction of the terms of that particular issue, the sums due on a monthly basis up to the testator’s death were to be treated as having been capitalised. The terms of that issue were very different from those before me. The terms provided that the certificates became “worth” a particular sum at a particular “rate of growth”, and that sums were “added” at particular stages, “representing” a rate of interest.[104]I think it would be dangerous to draw analogies between re Holder and the present case. It seems to me that the terms and conditions of the index-linked certificates with which I have to deal are properly viewed as providing an income return on a fixed capital investment. Although the income return has two elements, both are described as causing the certificate to “grow in value”. The amount repayable on the anniversary is the “anniversary value” which includes index-linking and interest. I am therefore not able to attach much weight to the term “value” when used in relation to the certificates having an “index-linked value”. Clause 6 says that Reinvestment Certificates “earn” both interest and index linking, which is a rather more potent suggestion that they are both income. Although I note that the terms refer to the certificates being free of Capital Gains Tax, I do not think much can be made of that. Such a provision might have been included, for the avoidance of doubt if the certificates paid only sums described as interest, given the references to “value”.[105]I conclude that the proper treatment of the National Savings Certificates is to treat the addition to their “value” whether described as “interest” or “index-linking” as income and not capital.[106]In my judgment the executors owed Dr Martin a duty of care to point out that the National Savings Treatment was not or might not be correct, and on these facts they were in breach of that duty.[107]Mr Waterworth submitted that this was no more than an accounting matter, and not one for which the executors should be liable in negligence, as the matter can be put right by an adjustment of the estate accounts as between Dr Martin and the charities entitled in remainder. He suggested that this meant that Dr Martin had not suffered any loss. I do not think this is realistic. The estate accounts have been signed, and could not be reopened without the consent of the charities. There is no reason to suppose that the charities would not wish to be heard on the question of the appropriate treatment.[108]Mr Waterworth submitted that the sums received by the executors in respect of periods before death should be treated as capital nevertheless. Mr Legge’s response was that, in fact, the executors did not and would not so have treated the receipts, as it would have required complex accounting. Mr Caton had not split the yield before and after death in respect of the interest payment. On balance I do not think the executors would have acted differently in respect of the index-linked element.[109]Mr Waterworth also submitted that the defendants should be relieved from liability under the Trustee Act, or exonerated under a clause inserted for that purpose under the Will.[110]Section 61 of the Trustee Act 1925 provides:
“If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve him either wholly or partly from personal liability for the same. ”
[111]Section 31 applies equally to executors and trustess: see section 68(17).[112]Clause 10 of the Will provides “No trustee shall be liable for any loss to any part of my estate however caused except severally for a loss caused by his or her own deliberate or reckless breach of trust.”[113]I do not think that either the Trustee Act or clause 10 provides a defence in this case. Whilst I have no hesitation in saying that the executors acted throughout entirely honestly, it is inherent in my judgment that it was not reasonable to treat the National Savings in the way in which they were treated, or so to treat them without applying to the court for directions. Even if that is wrong, I would not have been prepared to exercise my discretion to grant relief under the section in the present case. This is not a case where the executors were lay people who acted on independent legal advice. In the absence of some factor such as this, I think the liability should lie where it falls.[114]Finally I do not think that clause 10 has any application either. It provides protection against loss to the estate. The loss here is to Dr Martin.

The misapprehension claim

[115]On the view which I have taken thus far, the misapprehension claim does not arise. It was a pure alternative to the primary claim of pre-death negligence. The claim starts from the premise that the last will of Mr Martin was correctly drafted, and contends that the defendants failed to advise Dr Martin of the limitation on the power of advancement. Dr Martin contends that numerous consequences flowed from the defendants’ failure to tell her what the will contained. For example she says she would never have given her children the life insurance money from Unilever, a claim which accounts for £200,000. She also contends that she would have instructed the Trustees to invest the funds so as to maximise income: so she would not have agreed to the National Savings treatment, and she would have encouraged the Trustees to secure income at the expense of capital.[116]Because of the view I have formed on the primary claim, it is not necessary for me to deal with these claims in any detail. Nevertheless, these claims occupied a great deal of time at the trial, and are no doubt responsible for a significant proportion of the costs. In the light of that fact, and the possibility that the matter might be taken further, I will state my conclusions shortly.[117]In my judgment the misapprehension claim fails because there was no assumption of responsibility by the defendants to advise Dr Martin as to the contents of the will. The assumption of responsibility in relation to the widow’s pension entitlement was self-contained, and it is clear even then that Dr Martin regarded Mrs Wedderspoon as her late husband’s solicitor. Mr Legge sought to overcome this problem by identifying occasions when, as he submitted, the defendants ought to have been alerted to Dr Martin’s misapprehensions as to the contents of the will. None of the occasions relied on was, in my judgment, adequate to put the defendants on notice that there was any misapprehension on Dr Martin’s part. I think the earliest that it could be said that the defendants had any inkling of the misapprehension was when Dr Martin quoted the sum she might need for her French property acquisition. This, however, was not relied on by Mr Legge. The timing of that event did not fit with Dr Martin’s claim for damages.[118]Moreover I was not satisfied that, even if a duty was established, Dr Martin would have been able to establish the heads of loss which she claimed. I was not persuaded that she would not have made the gifts to her children and relatives in any event. The claim that she would have caused the Trustees to pursue a different investment policy gave rise to the need for contested expert evidence, and disputes and submissions as to the amounts she had actually received persisted until after trial. In the end I was not persuaded that Dr Martin suffered any significant loss under this head, and certainly not enough to have justified litigation on this scale.[119]Accordingly, this alternative claim would have failed.

Conclusions

[120]The pre-death claim succeeds, as do the post-death claims in respect of the pension and National savings treatment. Had it been necessary to decide it, the misapprehension claim would have failed.[121]I will hear counsel on the form of order.