A recent case in the High Court has served as a very stark reminder to solicitors about the importance of not delaying the preparation of a Will, where the client is elderly and infirm. It also highlights the avenues open to disappointed beneficiaries, to seek damages from the firm if the delay is unreasonable.
In the case of Feltham v Freer Bouskell [2013] EWCH 1952 (Ch), the Claimant, Lorraine Feltham, had previously been involved in a Will dispute over the estate of her late step-grandmother Hazel Charlton. Mrs Charlton had instructed Freer Bouskell Solicitors to prepare a Will on her behalf, which would have left the majority of her estate to Lorraine. They were instructed around the 24th January 2006.
There was some concern about Mrs Charlton’s mental capacity to give instructions to make a Will, as she was suffering from mild dementia and was living in a nursing home at the time. The solicitors quite rightly insisted that a medical report be obtained from a doctor before the Will was executed. The solicitor agreed to instruct the doctor to prepare the report. The report was not obtained however until around the 2nd March 2006, and confirmed that Mrs Charlton did have sufficient capacity to make a Will.
The solicitors still did not prepare the Will swiftly however, and by the 13th March, the Claimant had lost patience with them, and was worried about the delay, given her deteriorating health. She therefore asked Lorraine to arrange for a new Will to be prepared, using an online Will service. This Will was organised by Lorraine and was finalised and executed on the 23rd March. The Will left £50,000 each to a friend and cousin of Mrs Charlton’s and the remainder of the substantial estate to Lorraine.
Mrs Charlton passed away on the 1st April 2006. Her cousin and friend brought a challenge against the Will on the basis of undue influence, and lack of want of knowledge and approval. As Lorraine had arranged the preparation of the Will, she was under a significant burden to prove its validity and the dispute was settled at mediation in December 2007, whereby she agreed to pay £325,000 from the estate, to each of them.
Lorraine argued that had Freer Bouskell Solicitors acted swiftly in preparing the Will that they were instructed to prepare, the independent nature of this Will, together with the medial report, would have made a challenge against it far less likely to have succeeded. Lorraine therefore lost a significant portion of her inheritance, and brought a claim in professional negligence against Freer Bouskell Solicitors, for their negligent preparation of the Will.
The High Court concluded that the solicitors had acted negligently in not expediting the doctor’s report, and that the 5 weeks it took was unreasonable. The Court commented that, in particular in cases of elderly and infirm clients, and where the solicitor has agreed to take on the responsibility of instructing the doctor, it must be done swiftly, and thereafter, there should be no further delay in finalising the Will. Lorraine was therefore entitled to damages based on a percentage of the amount that she had to pay out in the Will dispute case, and was entitled to her legal costs.
As a solicitor specialising in both professional negligence cases, and inheritance dispute cases, I often deal with situations like this, where Wills have been prepared negligently. Anyone facing this kind of dispute should always seek specialist legal advice at the earliest opportunity. I am a solicitor and member of ACTAPS – the Association of Contentious Trusts and Probate Specialists. I am therefore a qualified specialist in these types of disputes, and can provide you with quick expert advice in relation to your case.
For a fixed fee of £49.95, you can have a 30 minute appointment with either myself, or another solicitor who specialises in your kind of case. The appointment can be either on the telephone, or face to face, depending on your preference. We will take some details from you before the appointment, and then the solicitor will discuss your case with you, and what your options are. If your case is something that we can then help you further with, we can then discuss your funding options with you.
By Heather Korwin-Szymanowska, Dispute Resolution department
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