Delay in drafting a Will can amount to professional negligence

15 August 2013

In the recent case of Feltham v Freer Bouskell [2013] ECH 1952, a successful claim for professional negligence was bought against the solicitor who delayed in carrying out the testator’s instructions to alter her Will before she died. The solicitor delayed in drafting the updated will due to concerns about his client’s mental capacity, but this fact in itself was not enough to prevent a claim for professional negligence from the would-be beneficiary.

As a result of the delay, the deceased created a homemade Will (“the 2006 Will”), which left the bulk of her large estate to the Claimant (her step-granddaughter), to the detriment of beneficiaries under the deceased’s previous Will from 1998 (“the 1998 Will”).

This 2006 Will was challenged by the beneficiaries of deceased’s 1998 Will and their contentious probate claim was settled by the estate, and therefore, deprived the Claimant of her expected total inheritance.

The Background
Ms C, a 90 year old lady, moved into a nursing home in January 2006 after the death of her long term partner, and she instructed the Claimant to approach her existing solicitor, the Defendant, to make a new updated will for her. Ms C said she wished to leave the majority of her estate to the Claimant, who was not a beneficiary under any of Ms C’s previous wills. The Claimant duly contacted the Defendant to explain the situation, and mentioned that Ms C was suffering from dementia. This immediately rang alarm bells for the Defendant and he instructed the nursing home GP to provide a written medical opinion as to Ms C’s testamentary capacity. The Defendant did not receive the GP’s report until five weeks later, which confirmed that there were no concerns about Ms C’s mental capacity to change her Will.

During this time, the Defendant did not chase the GP for a response. The delay meant that Mrs C grew frustrated and decided to draft her own Will with the assistance of the Claimant, with the Claimant as the main beneficiary.

The Claimant prepared various drafts using Will drafting websites and provided them to Ms C to review. Ms C approved a version, and it was executed and witnessed. The Defendant knew nothing of the new will, nor did Ms C mention it to him. He did not follow up her request to make a new Will due to his ongoing concerns about her mental health.

Shortly after executing the 2006 Will, Ms C was taken ill and died. The Defendant was then made aware of the Will by letter from the Claimant, which informed him of the existence of the 2006 Will at the same time. He was surprised by this, and wrote to the beneficiaries of the 1998 Will, highlighting his own doubts as to whether Ms Charlton “knew what she was doing when she signed the new will”.

Under the 2006 homemade Will, the original beneficiaries were left just £50,000 each. If the 2006 Will was invalid, the estate would be distributed as per the 1998 Will and they would each stand to inherit half of Ms C’s estate, which was by 2006 worth over £2 million. Accordingly they brought a claim against the estate challenging the 2006 will. These proceedings were settled with Ms Charlton’s estate paying them £325,000 each, thereby reducing the Claimant’s share of the estate. The Claimant therefore pursued a professional negligence claim against the Defendant.

The court’s decision
The judge ruled that the Defendant was negligent in failing to deal with the instructions from Ms C, and negligent in failing to chase the GP when he did not receive a report on capacity promptly. The Claimant was awarded a total of £712,801.60 to cover the amount paid to the original beneficiaries in settlement and the Claimant’s legal costs in relation to defending the Will challenge.

The judge found that the Defendant had accepted Ms C’s instructions to prepare the updated Will, subject to satisfying himself on the capacity issue. He also found that, having “undertaken the capacity issue as part of his brief, it was [his] obligation to resolve the capacity issue with reasonable expedition”.

The judge found that the GP should have been chased for a response by the Defendant and if the report had not been provided promptly, another doctor should have been instructed. Five weeks passed between instruction and receipt of the report, which was “far too long given the instruction to alter the will of a 90 year old lady”.

It might at first appear that the Defendant had acted sensibly in holding off preparing the updated Will, given his concerns about his client’s mental capacity. The court in this case did not dispute this, but criticised the Defendant for his failure to act promptly to resolve the issue within a reasonable time. The judge accepted that “what constitutes a reasonable period of time is case specific”, but felt that “the older the client, in general, the greater the urgency”.

In addressing the question of whether the 2006 Will would have been challenged by the beneficiaries of the 1998 Will, even if it had been drawn up by the Defendant, the judge was mindful of the recent Court of Appeal decision of Hawes v Burges (for more on this case, see our recent blogs Invalid Wills – the challenge of proving lack of testamentary capacity and Does dementia make a will invalid?.  Referring to the case, he highlighted that where a Will had been drawn up by an experienced solicitor, only on the clearest evidence of lack of mental capacity should that Will be set aside. The judge therefore concluded that if the Defendant had drafted the Will as instructed, there was “no likelihood of any challenge”.

The judge also referred to the case of White v Jones, in which the House of Lords held that where a client gave instructions to their solicitor for the drawing up of a Will, the assumption of responsibility by the solicitor to their client could extend to an intended beneficiary under the proposed Will. He found in this case that although the Claimant was not the Defendant’s client, the principle in White v Jones applied, as it was “reasonably foreseeable that if [the Defendant] failed to carry out his instructions for Ms Charlton, [the Claimant] would suffer loss”. This is therefore encouraging for intended beneficiaries who may have a claim against a solicitor where they have ‘lost out’ under a Will as a result of the solicitor’s negligence.

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