Is a solicitor under a duty to warn their client of risks falling outside their retainer?
As Coronation Street fans will know, Aidan Connor (played by Shayne Ward) tragically committed suicide earlier this year. Following his death, his family were shocked to discover that he left his share of his business, Underworld, to his friend and former business partner Alya Nazir.
Aidan’s half-sister, Carla Connor, was particularly outraged by this. She had gifted her interest in the business to Aidan earlier in the year, after he had made his Will but before his death. Carla and family consulted a local solicitor, Adam Barlow, who suggested that they could challenge the Will on the grounds that Aidan lacked capacity due to depression.
The court will consider the specific facts of a case when assessing testamentary capacity, and apply the three part test laid down in Banks v Goodfellow (1870). A testator is considered to have capacity if: (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his Will in disposing of his property.
In the case of Key v Key  EWHC 408 it was found that mood disorders such as depression can affect testamentary capacity. That case related to a dispute regarding the estate of Mr Key, who made a new Will the week after his wife of 65 years had died. A central issue in the case was the effect his wife’s death had on Mr Key's mental health. Dr Hughes gave evidence that affective disorders including depression, may lead to an increased suggestibility in the mind of the patient, so that he simply assents to suggestions from others. Evidence from Professor Jacoby, a well-known and highly regarded expert in the field of mental capacity, was also considered by the court. He agreed with Dr Hughes and said that a severe reaction to bereavement may, like depression caused by other factors, impair attention and concentration, and the ability of the sufferer to take things in and remember them.
Briggs J found that a person suffering from an affective disorder may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit. He confirmed that the three part Banks v Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19th century. Briggs J considered that a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension was necessitated, by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorders.
However, mental illness alone does not automatically invalidate a Will. A testator is potentially capable of having testamentary capacity one day, but not the next. The important thing is whether or not Aidan had capacity at the time of making the Will and it may be difficult to convince a court that he did not, and to successfully challenge the Will on this basis.
Aidan’s Will failed to make provision for his infant daughter Susie, which is unsurprising given that he did not know she existed when he made his Will. Under section 1(1)(c) of the Inheritance (Provision for Family and Dependents) Act 1975, a child of the deceased is entitled to bring a claim against the estate if reasonable financial provision has not been made for their needs. Susie is likely to have a strong claim as a minor child in need of financial support. Her mother Eva could seek to act as her litigation friend to issue proceedings on her behalf.
Adam Barlow failed to advise Aidan’s family on what would happen if they did successfully challenge the Will. Assuming there was no previous valid Will, the intestacy provisions would apply and Aidan’s estate would pass to his daughter Susie, so Carla still would not get her hands on Underworld. To complicate matters, Carla and the rest of Aidan’s family had to find themselves a new solicitor when Adam left for France (with Susie and her mother Eva). Carla may have received better advice from her new solicitor, as it seems she has now decided against bringing a claim.
It is important to consider the impact of challenging the validity of a Will at the outset and to obtain specialist legal advice, though preferably not from Adam Barlow.
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