Negligent Delay in Preparing a Will

Negligent Wills specialist, Lee Dawkins, looks at the case of ‘Feltham -v- Bouskell’ where a solicitor was held liable for delay in preparing a Will

Hazel Charlton, a 90 year old lady, had made several previous Wills. Her step-grand-daughter, Lorraine Feltham, was not a beneficiary in any of them.

On 16th January 2006 Lorraine telephoned Hazel’s family solicitor to explain that Hazel was suffering from dementia and had moved into a nursing home.

On the 24th January Hazel told her solicitor that she wanted to leave Lorraine a legacy. Lorraine confirmed Hazel’s instructions to the solicitor in writing and gave him details of Hazel’s doctor so that he could verify that Hazel had testamentary capacity and was able to make a valid Will.

Hazel subsequently called the solicitor to say that she was concerned Lorraine was after her money. She did not mention making a new Will to the solicitor during this conversation.

The solicitor had already arranged for a Medical Report to be obtained and that report arrived on the 2nd March, confirming that Hazel did have sufficient mental capacity. In view of the uncertainty concerning Hazel’s intentions the solicitor took no further action.

On 13th March Hazel (apparently fed up with the solicitor’s delay) asked Lorraine to prepare a new Will for her. Lorraine went to a Wills website online. The final version of the new Will left Lorraine a substantial sum. The new Will was approved by Hazel on 23rd March and executed the following day without the further involvement of the solicitor.

On the 1st April 2006 Hazel died.

The validity of the March 2006 Will was subsequently challenged by the other beneficiaries who had lost out as a result of Lorraine’s legacy.

The new Will was challenged on the grounds of “want of knowledge and approval”.

Because Lorraine had organised the Will herself there was a heavy burden of proof on her to prove that Hazel knew and approved the Will’s contents. Had the Will been prepared by the family solicitor, this would have been much easier to demonstrate.

Lorraine and the disappointed beneficiaries attended a Mediation in 2007 where the invalid Will claim was settled, with Lorraine paying £650,000 to the other beneficiaries.

Having lost such a large proportion of her legacy, Lorraine then brought a professional negligence claim against the solicitors for failure to prepare Hazel’s Will.

The negligent Will claim was based on the ‘White –v- Jones’ principle which established that, while not a client, solicitors nevertheless owe beneficiaries like Lorraine a duty of care.

The Court agreed the solicitor had acted correctly in obtaining a medical assessment. However, if a client’s conduct causes that solicitor to have any doubts then the onus is on him to take decisive action.

So, having obtained the Medical Report the solicitor should have progressed matters. It was not acceptable for the solicitor to do nothing, waiting for the client to offer further instructions.

The Judge said that the 5 week delay in preparing a medical report was far too long where the client was elderly and unwell. The solicitor should have chased up the Medical Report after 10 days and was negligent not to have done so. Once the Medical Report had been obtained the solicitor should have visited the client to discuss the proposed changes to her Will.

This successful negligent Will claim underlines the extent of the duty of care that solicitors owe to beneficiaries, particularly when they are instructed to prepare Wills for elderly or unwell testators.

If you have lost out as a result of negligent delay in preparing a will then call us for a free initial case assessment 0808 139 1591 or email us at [email protected]

Negligent Delay in Preparing a Will