Testamentary Capacity and Undue Influence – When does a Professional Negligence Claim arise?
Delay is a common complaint in professional negligence claims against solicitors in the context of wills and probate. For example, if a client is in poor health or advanced old age and wants to create or update their will, they might instruct a solicitor to assist with this. If the client dies before the new will can be prepared and/or executed, the beneficiaries who would have inherited, had the will been put in place before the client’s death, may look to bring a professional negligence claim against the solicitor if there has been undue delay by the solicitor in preparing the will.
The death of the testator does not preclude the would-be beneficiaries from being able to bring a claim. A solicitor's responsibility to his client when instructed to draw up a will can be extended to an intended beneficiary under the proposed will (White v Jones ). This means that a disappointed beneficiary can bring a claim on the basis that they have lost out on a particular gift or benefit under a will which was not executed in time before a testator’s death, due to the solicitor’s delay.
In relation to wills and probate, the circumstances where delay by solicitors can be an issue are broad. For example, the delay might relate to:
There is no fixed rule as to the length of delay which could lead to a valid negligence claim, as the key cases which have been decided in this field make clear that it depends on what is reasonable in light of the particular facts and circumstances of the case.
For example, in X (a Child) v Woollcombe Yonge (A Firm) , the court made clear that whilst the solicitor owed a duty to his client to prepare a new will promptly, the appropriate time frame in which to do so would depend on the circumstances of each case. In this case, the claimant’s great aunt had instructed her solicitor to prepare a codicil to her will which would have made the claimant the principal beneficiary. The court found that the solicitor had not acted negligently in failing to prepare a codicil prior to the death of his client, who had appeared to be likely to live for a further six weeks from the date of instructions but had in fact died within a week. The client’s mental state, the comments she had made to the solicitor and her medical notes all supported the view that she would live for at least another six weeks, and a solicitor would only be required to act urgently where there was a real prospect that his client was about to die.
In contrast, in Hooper v Fynmores , the elderly testator instructed his solicitor to prepare a new will which would have increased the claimant’s share of his estate. The testator was then admitted to hospital and the appointment to execute the will was cancelled by the solicitor when he himself was hospitalised. If the solicitor had made enquiries, he would have discovered that his client was very ill and could have arranged for another solicitor to attend instead. The appointment was later rearranged, but the testator unfortunately died before the appointment could take place. In this case, there was a delay of around 12 days between the cancelled appointment and the rearranged appointment. The court found that the first appointment should not have been cancelled without making enquiries about the testator’s health and considering whether to send a substitute. The solicitor had a duty to satisfy himself that the delay in executing the will, which was caused by his cancellation of the appointment, would not be disadvantageous to his client. Further, an appointment with an elderly client in hospital was not to be cancelled unless the client was agreeable to that. In this case, the solicitor was found to be negligent.
The court also looked at the effect of delay in Feltham v Freer Bouskell . In this case the elderly testatrix, C, gave instructions to her solicitor through her relative, L, to prepare a new will on 24 January. Under the terms of the new will, L was to inherit the bulk of C’s estate. The solicitor accepted instructions, subject to an assessment of his client’s testamentary capacity, as there was some suggestion that she might have dementia. The testatrix was visited by a doctor on 3 February, who formed the view that she did have testamentary capacity, but the doctor did not provide the solicitor with his report until 2 March. The solicitor was worried that L might be seeking to take advantage of C, and so decided to do nothing further unless C raised it with him herself, which she did not, before her death on 1 April. The court found that the solicitor had been negligent in failing to proceed with his instructions from C. A solicitor instructed to prepare and execute a new will was obliged to do so within a reasonable time, particularly where it was foreseeable that the testator might not live long. Having identified a possible issue as to capacity, the solicitor was obliged to resolve it with reasonable expedition. His concern that L might be taking advantage of C was understandable, but choosing to do nothing unless prompted by C was an entirely inadequate course of action. Further, the solicitor should have chased up the medical report within the first 10 days and should have arranged for another doctor to be instructed in the event that the first could not report expeditiously. Upon receipt of the report the solicitor should also have visited C to discuss her instructions.
It is therefore well established that every case will be decided according to its own unique facts and circumstances. It is clear that a solicitor must use their judgment as to how quickly they need to act for their client, based on their assessment of their client’s age and health, but if there are particular issues that mean time may be of the essence, such as the testator suffering from a serious illness, or advanced old age, the solicitor should not delay and ought to make drafting the will a matter of urgency.
If you are a beneficiary or executor of an estate and would like advice around a possible professional negligence claim relating to a will, please contact a member of our team. You may also like to read our Wills, Trusts and Inheritance FAQs or Inheritance blogs for more information.
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