Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Ian Robert Henderson v (1) June Wilcox (2) Julian Marcus Wilcox (3) Andrew John Robertson (4) Cynthia Jamieson Duff (2015)
The High Court considered an application for an order that the common law “forfeiture rule” be modified to allow the claimant, who had been convicted of the manslaughter of the deceased, to inherit from his mother’s estate. Mr Justice Cooke held that the power to modify the forfeiture rule was discretionary and the court had to be satisfied that the “justice of the case” required the particular modification. In this instance the circumstances of the case did not make it just for the court to exercise its discretion and modify the rule. It was considered to be of relatively low weight that the deceased would have wished for her son to have benefited from her estate and to be taken care of. Moreover, sympathy was not the guiding factor for the court. Insert judgment (http://www.bailii.org/ew/cases/EWHC/Ch/2015/3469.html)
Williams & Ors v Mugadza & Ors (2015)
The High Court considered an application that that a will was invalid on the grounds that the deceased had lacked testamentary capacity. The deceased died aged 91. Three months before the deceased’s death, her grandson had booked and accompanied her to an appointment at a solicitors' firm where she was said to have executed a will which left all of her property to him. Attempts were made to contact the witnesses to the will but no responses were received and the solicitors had no record beyond a diary entry of the appointment to make the will.
The claimants adduced prima facie evidence that the deceased did not have capacity including the fact that the deceased had a history of dementia that had got progressively worse over several years and a history of memory loss. The judge held that on the balance of probabilities, the deceased had lacked capacity but if that was wrong, the court's suspicion was sufficiently aroused by the circumstances surrounding the deceased having purportedly made the will to shift the burden on to the defendants to prove that she had known and approved of the will. The will was found to be invalid.
Peter Malcom Jones v (1) David Charles Longley (2) Richard Longley (3) Jane Eagers (2015)
The High Court ruled in favour an executor who had bought proceedings for the removal of his co-executor following a deadlock in the administration of the estate (the deceased died in 2010). The successful executor was regarded as having done the right thing in the interests of the estate and its beneficiaries in bringing the proceedings whereas his co-executor had acted unreasonably in defending the claim and was therefore ordered to pay his costs.
Ong and others v Ping  EWHC 3258 (Ch)
The High Court has held that separately represented beneficiaries engaged in litigation concerning a family trust were not able to recover all of their legal costs. Whilst at the initial stages a possible conflict was apparent, and therefore separate representation necessary, the beneficiaries interests subsequently became aligned and at this point separate representation became excessive.
Mr Justice Morgan said “If the court considers that the costs of separate representation exceeded what was reasonably necessary to present the claimants’ case and protect their interests, then the court will conclude that the additional costs (in excess of the costs which would have been incurred if the claimants had instructed a single firm of solicitors) were not reasonably incurred and those costs will be disallowed.”
The health warning arising from this case is that practitioners should ensure that they advise their clients of the risks they run in costs if separately represented.
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