It is not uncommon for a solicitor to fail to arrange for an updated will or codicil to be prepared and executed, particularly if the client is in poor health or advanced old age. In such cases, the testator’s previous will is admitted into probate, and their estate is administered according to its terms. If there was no previous will, the testator is considered to have died intestate, and their estate is distributed according to the Intestacy Rules. Although some of the beneficiaries may be content with this outcome, others may be disappointed because they would have been entitled to some inheritance or an increased share if the new will or codicil had been executed.
In such situations, the disappointed beneficiaries may wonder what options are available to them.
Professional negligence
Even if the disappointed beneficiaries are no longer entitled to inherit under the deceased’s estate, they may still have a legal claim against the solicitors who neglected to ensure that the updated will was properly executed. This claim may be based on the solicitor’s professional negligence, which led to a delay in the execution of the new will.
Solicitors may be considered negligent due to delay in various circumstances, which include:
- Taking too long to obtain instructions from the client
- Failing to act on the client’s instructions in a timely manner
- Taking an unreasonably long time to prepare a new will or codicil
- Failing to ensure that the new will or codicil is executed without delay
There is no set time frame that determines whether a delay is negligent or not. Instead, each case is evaluated based on its unique circumstances and what is considered reasonable under those circumstances.
Recent cases:
In the case of X (A Child) v Woollcombe Yonge (A Firm) [2000], the claimant’s great aunt had instructed her solicitor to prepare a codicil to her will that would have made the claimant the primary beneficiary of her estate. However, she passed away within a week of giving instructions. The court ruled that while solicitors are responsible for promptly preparing new wills, in this case, the solicitor had not acted negligently as there was no indication that the client was about to die. As a result, the claimant’s claim was dismissed.
On the other hand, in the case of Hooper v Fynmores [2001], an elderly client had instructed his solicitor to prepare a new will that would increase the claimant’s share of his estate. Unfortunately, the client passed away before the appointment to take instructions could be completed. The solicitor had failed to make any inquiries into the client’s health when he was admitted to the hospital. Had he done so, he would have discovered that the client was gravely ill and could have arranged for another solicitor to see him instead. The court held that the solicitor had a duty to ensure that the delay of about 12 days between the cancelled and re-arranged appointment would not be detrimental to the client. Since the solicitor failed to do so, the court found him negligent and the claimant’s claim was successful.
In cases where there is uncertainty about the testator’s capacity to make a valid will, what can be done?
To be considered valid, a will or codicil must not only comply with the formal requirements set out in Section 9 of the Wills Act 1837 but must also be executed by a testator who has testamentary capacity. In order for a testator to possess the required testamentary capacity, they must:
- Understand the significance of creating a will and its consequences
- Have knowledge of the extent of their property and assets
- Be capable of considering and appreciating the claims of potential beneficiaries
- Be free of any mental disorder or impairment that would influence their judgment or prevent them from making rational decisions regarding the distribution of their property through a will.
In cases where there is uncertainty about a testator’s mental capacity, lawyers may seek the opinion of a medical expert before finalizing any will or codicil. This was the scenario in the Feltham V Freer Bouskell [2013] case, where an elderly client gave instructions to her solicitor, via a relative, to draft a new will in late January. The proposed will bequeathed most of the estate to the said relative.
In the case of Feltham v Freer Bouskell [2013], the solicitor received instructions from an elderly client, given through a relative, to prepare a new will in which the relative would inherit the bulk of the estate. The solicitor was concerned about the possibility of the relative taking advantage of the client and the client potentially having dementia, so he agreed to take instructions on the condition that an expert report was obtained to confirm the client’s testamentary capacity. The medical practitioner visited the client on 3 February and confirmed her capacity in his report on 2 March. However, despite the report, the solicitor did not proceed with the instructions unless the client raised it with him, which she did not before her death in early April.
The court found that the solicitor was negligent in failing to proceed with the instructions within a reasonable time, given the foreseeable possibility that the client might not live long. Since the solicitor had identified a possible issue with capacity, he was obliged to resolve it with reasonable expectation. The solicitor should have followed up on the medical report within the first 10 days and arranged for another doctor to be instructed if the first could not report promptly. Once he received the report, the solicitor should have visited the client to discuss her instructions. Although the solicitor’s concern about the relative taking advantage of his client was understandable, doing nothing unless prompted by the client was inadequate.
The determination of each case depends on its unique facts and conditions. Solicitors must exercise their own discretion in deciding how promptly they should act for their clients, based on their evaluation of the client’s age and health. If there are specific circumstances that suggest time is of the essence, such as the testator being seriously ill or of advanced age, the solicitor must not postpone and should take the necessary measures to obtain instructions for the will/codicil, prepare, and ensure prompt execution.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss that may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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