Against Your Will

Where a Solicitor fails to act on a client’s instructions to draft a Will which results in a potential beneficiary being denied their inheritance, there is no claim for breach of contract as there is no contract in place between the Solicitor and the potential beneficiary. However, an action in professional negligence may be possible on the basis that the Solicitor does in fact owe a duty of care to the potential beneficiary.

In the case of Feltham –v- Freer Bouskell, the Defendant Solicitor accepted instructions to prepare the Will of a 90 year old testatrix who wished to alter an earlier Will to make her step-granddaughter (who had not previously been a beneficiary) the main beneficiary. The testatrix was suffering from dementia and so the Solicitor sought a written medical report as to her testamentary capacity. The report was not received (and was not chased) until 5 weeks later, which confirmed no concerns.

Even after receipt of the report, the Solicitor had taken no steps to draft the Will as he had concerns that his client was being taken advantage of and so a Will was drafted by the Claimant which was subsequently challenged by the beneficiaries under the original Will. The other beneficiaries would have each inherited half the estate, worth in excess of £2 million. Under the new Will, they were to receive £50,000 each.

Following the death of the testatrix 8 days after the signing of the new Will, the Solicitor wrote to the other beneficiaries suggesting they seek independent legal advice on contesting the new Will as he had not been convinced that the testatrix knew what she had been doing. The Will was subsequently contested and the claim settled at Mediation. The Claimant brought a claim in professional negligence against the Solicitor.

The Court took the view that despite the best intentions of the Solicitor, he had in fact breached his duty of care towards the Claimant. He had failed to act on the instructions of his client within a reasonable time and had been negligent in not taking steps to determine the testamentary capacity of his client promptly. The Judge was satisfied that the testatrix had the requisite mental capacity to make a Will and therefore her instructions should have been fulfilled in a timely fashion.

The fact that the Solicitor had chosen to take no steps unless approached by the testatrix herself fell short of his duty to his client. The Judge was satisfied that the testatrix did indeed know her own mind and wished to change her Will as her Solicitor had been instructed.

As a result of the negligence, the Solicitor was liable to the Claimant for an amount in excess of £700,000, being the sums paid to the other beneficiaries plus legal costs.  

The Court made it clear that a Solicitor instructed to prepare a Will has an obligation to do so within a reasonable period of time and where the testator is very elderly, this obligation is enhanced given the risk of imminent death. Where a Solicitor has concerns about the mental capacity of his client, he should either refuse instructions or take prompt steps to satisfy himself as to the client’s mental capacity.

Lindsay Dixon

Lindsay Dixon

Lindsay Dixon
Commercial Dispute Resolution Department
0113 227 9211

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