The dangers of delay when drafting a Will

Friday, 2nd May 2014

The recent case of Feltham v Bouskell [2013] EWCH 1952 (Ch) will ring alarm bells for Will drafters.  In this case a solicitor''s concern about the circumstances of a wealthy 90 year old client led to a finding of negligence for failing to prepare the Will.

The testatrix was a long standing client of the firm who had made a number of Wills in the past.  Within two weeks of the death of her partner the testatrix decided to make a new Will leaving the bulk of her estate to her step daughter Lorraine.  As Lorraine had not been mentioned in previous Wills, and as the testatrix was said by the residuary beneficiaries named under the earlier Will to have dementia, the solicitor obtained a medical opinion as to her capacity. The medical report, which concluded that the testatrix appeared to have capacity, was not received for 5 weeks after it was requested. In spite of the report, the solicitor decided not to proceed with the Will instruction in any event as he was concerned that Lorraine may have been taking advantage of the testatrix (who had herself spoken to him about Lorraine generally and said that she believed she may be after money). Shortly after this, frustrated with the delay, the testatrix asked Lorraine to prepare a Will for her making the gift to her - which she did using a form downloaded from the internet.
 
Following the testatrix''s death the beneficiaries under the earlier Will challenged that last Will.  Lorraine settled their claims by making payments to them and brought a negligence claim against the solicitor for failing to prepare the Will.  She argued that if the solicitor had prepared the new Will rather than her, the new Will would have been unlikely to have been challenged.

The Court held that the solicitor was negligent.
 
The solicitor was right to be concerned to ensure that his client had testamentary capacity but it was held not acceptable for him to decide not to take the matter further.  He should have promptly discussed this with the testatrix to ascertain whether the instructions were truly hers.  Further, although the solicitor promptly instructed the doctor, the five weeks taken to produce the medical report was far too long in the case of a 90 year old lady.  The judge held the solicitor should have chased for the report and, if necessary, arranged for another doctor to be instructed.  The judge suggested on these facts the solicitor should have chased after 10 days.

Lorraine was therefore entitled to recover from the solicitor the sums she had paid to the beneficiaries under the earlier Will and her costs of that action.
 
This may perhaps seem a harsh outcome for a well-meaning Will drafter, but it is perhaps a useful reminder to us all to be clear about our instructions and to do all we can to avoid delay in making a Will.
 

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