It is not uncommon, particularly if a client is in poor health or advanced old age, for a solicitor to have failed to arrange for a proposed updated will or codicil of a client to be prepared and/or executed prior to their death. The non-execution of the updated will or codicil means that the testator’s previous will is admitted into probate and their estate administered according to the terms thereof or, if there was no previous will, then the testator will be treated as having died intestate and their estate will be distributed according to the Intestacy Rules. Whilst those now inheriting may be more than happy with this outcome, what about those beneficiaries who would have been entitled to some form of inheritance or perhaps an increased inheritance if the new will or codicil had been executed, the so-called disappointed beneficiaries – what can they do?
Professional negligence claim
Whilst disappointed beneficiaries may no longer have a right to inheritance under the deceased’s estate, they may instead have a claim against the solicitors who failed to ensure the updated will was executed on their basis of their professional negligence due to the solicitor’s delay.
What amounts to negligence?
The circumstances where solicitors may be found to have been negligent due to delay are broad and include:
Delay in relation to taking of instructions;
Delay in acting on any instructions taken;
Delay in the preparation of a new will and/or codicil; and
Delay in relation to the execution of a new will and/or codicil.
There is no fixed rule as to the length of time which may lead to a finding of delay such as to mean the solicitor has been negligent. Each case is decided on its own individual facts and is dependent on what is reasonable in light of the facts and circumstances of that particular case.
Examples of recent cases
In X (A Child) V Woollcombe Yonge (A Firm)  the claimant’s great aunt had instructed her solicitor to prepare a codicil to her will which would have resulted in the claimant becoming the primary beneficiary of her estate. At the time that the instructions were given to the solicitor, although in poor health, her general state of health supported the fact that she should live for another six weeks. Unfortunately, she died within a week. The court made it clear that whilst solicitors owed a duty of care to prepare a new will promptly, the solicitor had not acted negligently in failing to prepare the codicil within a week given the medical evidence – a solicitor would only be required to act urgently where there was a real prospect that a client was about to die. In the circumstances, the claimant’s claim was dismissed.
Conversely, in Hooper V Fynmores , an elderly client instructed his solicitor to prepare a new will which would increased the claimant’s share of his estate. The appointment to see the solicitor for the purposes of taking instructions was cancelled when both the client and the solicitor were admitted to hospital. Although the appointment was later re-arranged by the time of the appointment the client had sadly died. The solicitor had not made enquiries as regards his client’s health when he was admitted to hospital. Had he done so, he would have discovered that he was gravely ill and could have arranged for another solicitor to see him instead. The court held that the solicitor had a duty to satisfy himself that the delay of about 12 days between the cancelled and re-arranged appointment would not be a disadvantage to the client. His failure to do so, was in the court’s opinion, negligent and the claimant’s claim was successful.
What if there is doubt as to the testator’s testamentary capacity?
For a will or codicil to be valid, as well as complying with the formalities as set out in Section 9 of the Wills Act 1837, a testator must have testamentary capacity to execute the will or codicil. For a testator to have testamentary capacity, they must:
Understand the nature of making a will and its effects;
Understand the extent of the property of which they are disposing;
Be able to comprehend and appreciate the claims to which they ought to give effect; and
Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
Where there is doubt as to a testator’s capacity, solicitors will often wish to obtain an expert opinion from a medical practitioner as regards the testator’s capacity prior to the execution of any will or codicil. Such was the position in the case of Feltham V Freer Bouskell . In this case, an elderly client gave instructions to her solicitor through a relative to prepare a new will towards the end of January. Under the terms of the new will, the relative in question was to inherit the bulk of her estate.
The solicitor was worried that the relative might be trying to take advantage of the client and there was also some suggestion that she might have dementia. Accordingly, he accepted instructions but on the basis that an expert report be obtained from a medical practitioner confirming that the testator had the necessary testamentary capacity to give instructions and execute a new will.
The doctor so instructed by the solicitor visited the testator on 3 February but did not provide the solicitor with his report until 2 March. The doctor formed a view that the testator did have testamentary capacity. However, in view of his concerns regarding the relative and whether he might be trying to take advantage of the testator, despite the contents of the report, the solicitor decided to do nothing further unless the testator raised it with him herself, which she did not prior to her death at the beginning of April.
The court found that the solicitor had been negligent in failing to proceed with the instructions from his client. A solicitor instructed to prepare and execute a new will was obliged to do so within a reasonable time, particularly where it was foreseeable that the testator might not live long. Having identified a possible issue as to capacity, the solicitor was obliged to resolve it with reasonable expectation. The solicitor should have chased up the medical report within the first 10 days and arranged for another doctor to be instructed in the event that the first could not report expeditiously. Upon receipt of the report the solicitor should also have visited the client to discuss her instructions – his concern that the relative might be taking advantage of his client was understandable but choosing to do nothing unless prompted by the client was an entirely inadequate course of action.
It is clear that every case will be decided based on its own individual facts and circumstances. Solicitors must use their own judgement as to how quickly they need to act for the client, based on their assessment of the client’s age and health. If there are particular issues that are likely to mean time may be of the essence, such as the testator suffering from a serious illness, or advanced old age, the solicitor should not delay and must take steps to take instructions for the will/codicil and prepare and ensure the same is executed as a matter of urgency.
If you are or think you may be a disappointed beneficiary and would like advice on a potential claim, then please get in contact:
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.