A proposed beneficiary under a Will loses out because a solicitor fails to prepare that Will. Can that beneficiary make a claim against the solicitor? There is no contract between the potential beneficiary and the solicitor, so ordinarily there will be no claim for breach of contract. The question then is whether the solicitor could be said to owe a duty of care to the proposed beneficiary and whether the failure to prepare the Will amounts to a breach of that duty.

That issue was dealt with by the House of Lords in the 1995 case of White v Jones [1995] 2 AC 207. The same issue came before the English High Court in the recent case of Feltham v Freer Bouskell [2013] EWHC 1952 (Ch).

Background

The case involved an action in negligence brought by Ms Feltham against her step-grandmother’s solicitors, Freer Bouskell (“FB“). Ms Feltham claimed that FB had negligently failed to prepare and execute a new Will for her step-grandmother, one Ms Charlton, under which she would have benefitted significantly. As a result, Ms Charlton had to ask Ms Feltham to draft a new Will for her, which was later challenged by two people who would have benefitted from Ms Charlton’s original Will. Ms Feltham had to settle the challenge by making payments to those two individuals and incurred significant legal costs. She argued that, if FB had prepared the new Will as they had been instructed to do, it was most unlikely the Will would have been challenged. Ms Feltham claimed against Mr Ward, the solicitor in question, for negligence under the principle in White v Jones.

Facts

The court considered the events leading up to Ms Charlton’s death, in order to determine whether Mr Ward of FB had indeed been negligent. Mr Ward had been instructed to prepare the new Will on the 24 January 2006. Shortly before, Mr Ward was contacted by Ms Feltham to explain that Ms Charlton had been moved into a nursing home and was suffering short-term memory loss. Previously, Ms Charlton had given an Enduring Power of Attorney in favour of Mr Ward, to be registered when he had reason to believe she was becoming mentally incapable.

In light of those circumstances, Mr Ward said he would require a doctor’s report confirming Ms Charlton’s mental capacity, before drafting the Will. Dr Staunton was instructed on 26 January, but did not examine Ms Charlton until 3 February and did not produce the report until 2 March. Mr Ward did not chase Dr Staunton during this period. During that time, Mr Ward had received calls the two of Ms Charlton’s friends, the beneficiaries under the original Will, who were concerned that Ms Feltham was taking advantage of Ms Charlton. In view of those concerns, Mr Ward decided not to proceed with drafting the Will.

The report indicated that Ms Charlton was of sound mind. On the same day as he received the report, Mr Ward heard that Ms Charlton had suffered a nasty fall. Mr Ward still did not act upon Ms Charlton’s instructions. As a result of the delay, Ms Charlton ended up asking Ms Feltham to help her draft a Will, which was executed on 26 March. A week later, Ms Charlton passed away. Mr Ward wrote to the two beneficiaries, suggesting that they challenge the Will. They did so and Ms Feltham paid them a settlement figure. Ms Feltham then claimed against Mr Ward in negligence, for failing to deal with the instructions from Ms Charlton had failing to chase Dr Staunton for his report.

The Court’s Decision

The Court held that, under the White v Jones principle, Mr Ward had assumed a duty of care to Ms Charlton, which extended to Ms Feltham. Mr Ward had breached that duty, by negligently failing to act on Ms Charlton’s instructions and chase Dr Staunton.

The judge found that, where a solicitor was instructed to prepare a Will for a very elderly testator, they have an obligation to carry out those instructions within a reasonable period of time. While he agreed that Mr Ward needed to be satisfied as to Ms Charlton’s mental capability, the judge held that, if Mr Ward had had concerns, he should either have refused the instructions or promptly taken steps to satisfy himself as to her mental state.

It was reasonably foreseeable that if Mr Ward failed to carry out his instructions for Ms Charlton, Ms Feltham would suffer loss. If Mr Ward had chased Dr Staunton for the report, he would have resolved his doubts and drafted the Will prior to Ms Charlton’s death. There would have been no grounds for challenge and Ms Feltham would not have been required to pay the settlement. The judge allowed Ms Feltham to recover the sums paid under the settlement and her legal costs.

Comment

Working with the vulnerable and those with failing mental faculties can present significant challenges for solicitors and other professionals. Wills are often prepared in circumstances of urgency which may also cast doubt on mental capacity or raise other concerns about the validity of the Will. Many would have sympathy with Mr Ward, particularly given the concerns expressed to him about Ms Charlton being taken advantage of. However, the judge expressed his disapproval of Mr Ward’s decision not draft the Will on the basis of the limited information available to him. Despite having had the opportunity to do so, he did not clarify any of his concerns with his client and, ultimately, it was not his decision to make as to whether it was a good idea for Ms Charlton to change her Will.

A key issue arising from the case is the need to act quickly or not at all. Had Mr Ward refused the instructions, he could not have been criticised. Equally, if he had acted on them in a timely fashion (including by chasing third parties), the dispute would likely have never arisen.