Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again

17 Pages Posted: 5 May 2003

Abstract

A solicitor, when drafting a will, can owe a duty of care in tort to the intended beneficiary of a bequest under that will. The Court of Appeal has recently confirmed that where a solicitor has misdrafted the will, the intended beneficiary can sometimes rectify it, and recover the intended gift. The pattern of this rectification is restitutionary, raising the question analysed in this article of whether an intended beneficiary can have a direct personal action in restitution to reverse the unjust enrichment of an unintended recipient. It seems that, though fraught, such an action may indeed in principle lie.

Suggested Citation

O'Dell, Eoin, Restitution, Rectification, and Mitigation: Negligent Solicitors and Wills, Again. Modern Law Review, Vol. 65, pp. 360-376, 2002. Available at SSRN: https://ssrn.com/abstract=313694

Eoin O'Dell (Contact Author)

Trinity College (Dublin) ( email )

School of Law
Trinity College
Dublin 2
Ireland

HOME PAGE: http://www.cearta.ie

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