Is a solicitor under a duty to warn their client of risks falling outside their retainer?
It has been widely reported in the press this week that British rock star Rick Parfitt, changed his will 5 days before he died on Christmas Eve to the exclusion of his current (third) wife with whom Rick had two young children. Rick also had two children with his first wife (one of whom predeceased him) and one child with his second wife. The Daily Mail reports that Rick’s estate is to be divided equally between his two adult children and his two minor children.
We do not know yet whether Rick’s wife and/or children will challenge the will but were they to do so there are typically five grounds on which inheritance claims can be based.
The validity of a will can be contested where:
The merits of these types of claims depend largely on the contemporaneous evidence from when the will was made, such as medical records or the solicitor's will file. If it is correct that Rick changed his will just five days before he died when he was said to have been extremely unwell, we would expect to see that the solicitor (if one was instructed) took this into consideration prior to Rick’s execution of the will.
Further if an individual does not consider that they have been sufficiently provided for (if at all) they may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable provision (including adult children who are entitled to apply for reasonable financial provision from the estate of a deceased parent). In this case, Rick has two minor children with his third wife and two adult children from his first and second marriages respectively. His will is said to only provide for his children, and in equal shares irrespective of the fact two are minors.
In considering a claim under the Act, a Court must have regard to the following factors as outlined in section 3(1) of the Act:
The competing needs of the beneficiaries would clearly be something that the courts would need, in particular, to grapple with in this case should the reported facts be true. Under the Act, a spouse is entitled to “such financial provision as it would be reasonable in all the circumstances of the case, whether or not that provision is required for his or her maintenance.” Any children (including adult children) are entitled to reasonable financial provision for their maintenance. The minor children are likely to have been maintained to a higher degree than the adult children.
It is not known whether Rick’s will has yet been admitted to probate, nor whether any of the parties will seek to contest it. No doubt given the profile of the deceased, any further developments will be widely reported in due course.
In general however, claims of this nature can be protracted, expensive and emotionally distressing for all concerned. Claims rarely begin with the issue of proceedings (and most commonly initially involve correspondence between the parties and/or their lawyers) but if a claim is to be made it often needs to be done quickly. For example, any claim under the 1975 Act must be made within six months of the grant of probate. Likewise, urgent action may be required to preserve assets, whilst claims are under consideration. In all cases, alternative dispute resolution, such as mediation, should be considered in order to seek to achieve a resolution out of court. Indeed, the vast majority of cases are settled before trial.
Skip to content Home About Us Insights Services Contact Accessibility