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Stephen Baker
Stephen Baker,
Solicitor fails to act leaving will contested
03 August 2013

The recent case of Lorraine Feltham –v- Freer Bouskell (2013) serves as a warning when preparing a will get instructions promptly and to satisfy any concerns about undue influence or mental capacity quickly.

The claimant in this case sued the defendant for professional negligence. The negligence arose when the solicitor accepted instructions to prepare the will of a 90 year old testatrix but fell short in his duty to quickly satisfy himself that she was of sound mind and wished to alter the will to make the main beneficiary her step-granddaughter who had not been included in an earlier will.

The solicitor received a call from Ms Feltham (the step-granddaughter of the testatrix) on 24 January 2006 saying that her grandmother wished to change her will. This was followed up by a letter dated the same day. Quite rightly in the circumstances the solicitor stated that he wished to instruct a doctor to ensure that the testatrix had testamentary capacity. 

The doctor was instructed relatively promptly but the solicitor did not chase the medical report which he then only received on 2 March 2006. During this period the solicitor was in communication with one of the main beneficiaries under the current will who claimed that the testatrix thought Ms Feltham was after the money and that she had dementia and should have been in a home a year before. The solicitor resolved not to chase the testatrix for instructions taking the view that if she really wanted to change her will she would contact him. The delay resulted in the testatrix making Ms Feltham draft the will using a wills website. It was witnessed by two independent witnesses. 

Following the death of the testatrix 8 days after the signing of the new will the solicitor wrote to the two main beneficiaries under the 1998 will (who were still to receive £50,000 each under the new will) setting out how he was not convinced that the testatrix knew what she was doing and encouraging them to obtain their own legal advice on contesting the new will. Not surprisingly the will was contested which resulted in Ms Feltham settling that challenge at a mediation.

In the professional negligence claim the Judge decided that despite the solicitor’s good intentions and desire to protect the testatrix he had breached his duty of care to Mrs Feltham as a beneficiary. He accepted instructions to draft the will and failed to execute those instructions within a reasonable time. It was negligent not to satisfy himself swiftly as to the testamentary capacity of his client. The solicitor’s concerns that Ms Feltham was taking advantage of the testatrix was genuine and understandable on the information he had and this would have justified a personal visit to the testatrix in the nursing home. 

The solicitor was negligent in choosing to sit back and do nothing unless approached by the testatrix herself. The Judge appeared to be in little doubt after hearing all the evidence that had the solicitor taken such steps he would have satisfied himself that the testatrix did indeed know her own mind and wished to change her will in the manner that had been communicated to the solicitor by the testatrix’s 24 January 2006 letter, albeit that that letter was drafted by Ms Feltham (on the testatrix’s instructions). Ms Feltham’s losses were caused by this negligent inaction and she received compensation in excess of £700,000 being £650,000 she paid to settle the claims of the two beneficiaries who contested the will and £62,000 legal costs incurred dealing with the challenge to the will. 

For more information about this case or to find out more about how the Dispute Resolution team can help you please contact Stephen Baker on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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