Solicitor Negligent for Will Delay

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Solicitor’s delay in preparing a will is negligent says court

Lee Dawkins, Slee Blackwell’s Taunton based Negligent Wills Specialist, reports on the recent case of Feltham –v- Bouskell in which a solicitor was found to be negligent for the delay in preparing a Will.

The solicitor’s client, Hazel Charlton, was a woman in her 90’s. She had recently been admitted to a nursing home and was suffering from dementia.

Hazel decided that she would like to leave a legacy to her step-granddaughter, Lorraine Feltham.

The solicitor quite rightly said that a Medical Report would need to be obtained to establish whether Hazel had the necessary testamentary capacity to make a valid Will. He therefore made arrangements for the doctor to provide a report.

Hazel subsequently called the solicitor and apparently told him that she had concerns about Lorraine’s motives. During the course of this telephone conversation she did not mention anything to the solicitor about making a new Will.

When the Medical Report arrived it confirmed that Hazel did have the requisite testamentary capacity to make a Will. However, in view of what Hazel had said the solicitor decided not take any action.

Because Hazel had not heard from the solicitor she asked Lorraine to go ahead and prepare a new Will for her. Lorraine used a Wills website. Under the terms of the new Will she was left a very substantial legacy.

Within a week or so of making the new Will Hazel died.

The validity of the Will was challenged by the other beneficiaries on the grounds of want of knowledge and approval.

Their challenge was made easier because it had been left to Lorraine herself to organise the new Will. There was a high burden of proof on Lorraine to show that Hazel knew and approved its contents. Lorraine’s position would have been a great deal better if the Will had been prepared by Hazel’s own solicitor.

Accordingly, Lorraine felt she had no alternative but to reach a settlement with the other beneficiaries, paying them £325,000 each.

Lorraine then decided to bring a professional negligence claim against the solicitors for not preparing Hazel’s Will as requested.

Lorraine’s claim was based on the ‘White –v- Jones’ principle. So, whilst she was not a client herself the solicitors nevertheless owed Lorraine a duty of care.

The Court was critical of the solicitor. It had taken 5 weeks for the Medical Report to be obtained which the Judge said was far too long; indicating that the solicitor should have chased up the report after 10 days and if necessary made alternative arrangements.

The Court was also critical of the solicitor’s conduct once the Medical Report had been obtained. The solicitor should have visited Hazel at the nursing home to discuss her testamentary wishes. The solicitor was therefore held liable for professional negligence and the loss suffered by Lorraine as a result.

The case reinforces the decision in White v Jones and places an obligation on a solicitor to ‘see the job through’ once instructions to prepare a Will are accepted. The solicitor’s main error in this case was in failing to follow the matter up once the medical report had been supplied. Even if the solicitor had just cause to query the client’s intentions, he should have followed the matter up rather than ignoring it.

Our Professional Negligence Department works closely with our Specialist Contentious Probate Team on cases of negligent Will preparation. If you or a member of your family has suffered loss as a result of a solicitor’s failure to prepare a Will correctly then call us for a free case assessment on Freephone 08081391606 or email our solicitor, Lee Dawkins at [email protected]

Alternatively you can call in to see us in Barnstaple (or any of our other Devon offices) or at our new offices in Taunton, Somerset.