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negligent not to press on and prepare will

23 September 2013
Feltham v Freer Bouskell [2013] EWHC 1952 (Ch)

This case involved the Defendant firm, Freer Bouskell being held liable for negligently failing to prepare the will of wealthy 90 year old, Mrs Charlton, despite their concerns over whether she had capacity.

Facts

Mrs Charlton had made wills in 1992, 1997 and 1998, in which the Claimant, Mrs Charlton’s step-granddaughter, was not a beneficiary. The 1998 will left the majority of Mrs Charlton’s estate to her cousin, her friend, and her long term partner. In January 2006, Mrs Charlton was admitted into a nursing home following the death of her long term partner, and subsequently the Claimant contacted the Defendant to explain that Mrs Charlton wished to make a new will.  The new will would leave the bulk of Mrs Charlton’s estate to the Claimant.

The Defendant’s attendance notes documented that there had been mention of dementia and short-term memory loss, and Mrs Charlton herself had expressed concern that the Claimant was after her money. The Defendant suggested a medical report be obtained before preparing the new will, and Dr Staunton was instructed. His report arrived on 2 March 2006, and concluded that Mrs Charlton had capacity. However, by 13 March 2006, Mrs Charlton had lost patience and instructed the Claimant to prepare the new will, which was drafted using a website. Mrs Charlton signed it before two witnesses.

Following Mrs Charlton’s death on 1 April 2006, the two remaining beneficiaries of the 1998 will challenged the new will on the basis of want of knowledge and approval, and following mediation in December 2007 the proceedings were settled with the Claimant paying £325,000 to each of them. The Claimant then brought a claim in negligence against the Defendant on the basis that had they prepared the will as instructed, it would have been unlikely to be challenged.

Decision

Even though the Defendant had written making it clear that the capacity issue needed to be resolved and had promptly instructed Dr Staunton, the Court found that the Defendant had an obligation to resolve the issue within a reasonable time period and the five weeks it took to receive Dr Staunton’s medical report was too long given Mrs Charlton’s advanced years. The Defendant should have instructed another doctor, and not doing so had been negligent. The Judge suggested the Defendant should have chased the report after 10 days.

The Court also noted that the Defendant had formed the view that Mrs Charlton did not genuinely wish to change her will and so decided not to take further action unless prompted by Mrs Charlton. The Court said it was not a decision for the Defendant to take as to whether it was a good idea for Ms Charlton to change her will.

Comment

Given the not uncommon circumstances of this case, wills and probate practitioners should ensure that cases are handled quickly, especially where elderly clients, or those with health issues are concerned. However, considering instructing a doctor and arranging a medical report can be both time consuming and fraught with delays, files should clearly document when reports are chased and the doctor in question should be made aware of the necessity for a fast turnaround.

Practitioners should also address any concerns they have directly with clients, rather than taking no action, however this case will cause concern for many firms dealing with wills and probate.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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