Patricia Deans v Alan Deans [2020] JMSC Civ 76
This is a matter in the Supreme Court before Pusey J between Patricia Deans, the Claimant and Alan
Deans the Defendant
The facts
Patricia Deans and Alan Deans are two of six children of Mrs Beryl Deans who died intestate in
December of 2014.
Mrs Deans in her lifetime had acquired two properties and one relevant to the matter was situate at
49 Glimour Drive. As she got older, she expressed that she intended for the Claimant her daughter to
receive the stated property. After many persuasions by her son the Defendant, who is also an Attorneyat-Law, she finally gave the defendant instruction to prepare her Last Will and Testament devising the
property to the Claimant.
The Defendant prepared the Will but it was not signed at the time of Mrs Beryl Deans death amidst
several attempts made by the defendant to get her to sign it.
As such the estate fell into intestacy under the Intestates Estates and Property Charges Act with all her
children being entitled to one sixth of the property.
At a meeting held after Mrs Beryl Deans funeral the Defendant asked all those present if anyone had
a signed Will for the deceased. He then disclosed the Will that he had and explained that it had no
effect and explained the state of the property. He and three other siblings expressed their
unwillingness to give their share of the property to the claimant in accordance with their mother’s
wishes.
In relation to the preparation of the Will, the Claimant submitted that an implied retainer was formed
between the defendant and Mrs Beryl Deans the deceased based on their conduct.
The Defendant submitted to the contrary that his actions did not create a retainer by implication thus
forming an Attorney/Client relationship, but it was instead a mere domestic arrangement as a son
helping his mother arrange her affairs.
The issues that were determined were:
1. Was there an implied retainer between the deceased and the retainer for legal services to
have been carried out by the defendant on the behalf of the deceased? Short Answer No
2. If there was an implied retainer was there a negligent breach of that contract resulting in loss
and damage to the claimant for which she should be compensated in damages. Short answer
No
Decision
Judgment made in Favour of the defendant.
Holding and reasoning
Issue 1
A retainer is a contract between a client and an attorney-at-Law whereby the attorney performs
legal services for the client for a fee. They can be expressed or implied and are impacted by Contract
law. Therefore offer, acceptance, consideration and intention to create legal relations are required.
it is also impacted by ethics dealing with rights and obligation of an Attorney-at-Law as an officer of
the Court.
A retainer contract can be implied if on an objective assessment of the circumstances, there is tacit
understanding between the parties of an intention to enter into legal contractual relations.
While offer and acceptance was established between the deceased and the Defendant, intention to
create legal relationship or consideration was not made on the evidence of the Claimant and her
witnesses who had the burden of proving this relationship.
The Claimant’s only substantive evidence was based on what was said in the meeting after the
deceased funeral because she nor any of her witnesses even knew of the will before that point. They
testified that they also did not know of the circumstances surrounding the preparation of the will
therefore they could not have known if there was intention to create legal relationship. They failed to
provide evidence as to why the will was not signed.
The Judge further extracted the principle that in family or domestic agreements, the intention to
create legal relationship depends on the inference to be drawn by the Court from the language of
the parties and the circumstance in which it is used. The Defendant however urged that he acted
within the capacity of a good son. He stated that he did not intend for a retainer contract nor did it
exist. The Court found that he is the only living person who could truly provide evidence of these
interactions to infer the presence or absence of a legal relationship and based on the evidence nothing
affirmed the existence of a legal relationship.
Issue 2 – Even though the Court found that no retainer existed they still explored the issue
For there to be a finding of negligence there has to be a duty of care owed, breach of that duty
resulting in damage. This is extended to attorney/Client relationship and to third parties who suffer
loss from the breach of that duty.
The Claimant failed to establish that there was a breach of the defendant’s duty even if an
Attorney/Client relationship had existed. They gave no evidence agreeing nor denying the defendant’s
many attempts to get the Deceased to sign her will.
The defendant was the only party who outlined his many attempts at doing so.
Furthermore, the claimant did acknowledge that the defendant attempted to have the decease sign
the will on the day of her death, which the defendant also submitted as being one of the many
instances he presented the will to the deceased.
Also, the Defendant’s duty of care in the Attorney Client relationship would have been met when he
prepared the will as per the deceased instruction and presented it to her for signing. The deceased
refusal to sign does not constitute professional negligence on the part of the Defendant.
The claimant attempting to prove that the Defendant was trying to cheat her to get a larger share of
the deceased property also failed because it was the defendant who encouraged the deceased to make
a will amidst her initial reservations, he encouraged her to make an absolute provision devising the
whole of the property to the claimant instead of a conditional one and made many attempts for her
to sign it. If this were the case, it would not have served him to disclose the unsigned will at the funeral
when he knew the effect of it.