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CONTESTING A WILL – CAN A DISAPPOINTED BENEFICIARY SUE THE SOLICITOR WHO FAILED TO PREPARE THE WILL IN TIME? (SECOND PART)

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a disappointed beneficiary can sue the Solicitor who failed to prepare a relative’s Will in time or at all.

What circumstances can lead to this type of Will dispute or Will contest claim

In our previous blog we discussed whether a disappointed beneficiary can sue a Solicitor who failed to prepare a Will in time (or at all) but where they were likely to have been a substantial beneficiary (see https://www.willclaim.com/contesting-a-will-can-a-disappointed-beneficiary-sue-the-solicitor-who-failed-to-prepare-the-will-in-time/) under the new Will. We looked at how the House of Lords (as it was then – it is now the “Supreme Court”) set out to resolve the legal conundrums arising from this and did by formulating a potential claim by beneficiaries against the neglectful Solicitor(s) even though there was no direct contractual relationship with them and indeed only a “theoretical” loss in law (albeit I appreciate most disappointed beneficiaries would not consider their loss as “theoretical”).

What degree of delay is acceptable

The key questions in this context are whether the Solicitor should have known or understood there was an imminent prospect his client would die before the Will was completed and taken steps to expedite his/her instructions and further what degree of delay is unacceptable.

Should the Solicitor have known or understood there was an imminent prospect his/her client would die (and expedited his instructions)

Obviously the Solicitor cannot necessarily anticipate that his/her client might die, but the Court of Appeal has found that there is a duty to make enquiry so (in effect), the duty is an onerous one. This was the decision in Hooper v Fynmores 2001 ( https://swarb.co.uk/hooper-v-fynmores-chd-21-jun-2001/ ). In Hooper, the elderly testator instructed his solicitor to prepare a new will which would have increased the claimant’s share of his estate. The testator was then admitted to hospital and the appointment to execute the will was cancelled by the solicitor when he himself was hospitalised. It was found that if the solicitor had made enquiries, he would have discovered that his client was very ill and could have arranged for another solicitor to attend instead. The testator unfortunately died before the rearranged appointment could take place. In this case, there was a delay of around 12 days between the cancelled appointment and the rearranged appointment. The court found that the first appointment should not have been cancelled without making enquiries about the testator’s health and considering whether to send a substitute. The solicitor had a duty to satisfy himself that the delay in executing the will, which was caused by his cancellation of the appointment, would not be disadvantageous to his client.

What period of delay is acceptable?

In in Hooper v Fynmores 2001 ( https://swarb.co.uk/hooper-v-fynmores-chd-21-jun-2001/ ) above, the delay was 12 days and this was deemed unacceptable. However, there is no fixed rule as to the length of the delay; it simply depends on the circumstances. In X (a Child) v Woollcombe Yonge (A Firm) 2000 ( https://www.lawgazette.co.uk/news/will-drafting-pitfalls-forpractitioners-lawyers-need-to-be-certain-of-the-competency-of-elderly-or-ill-clients-during-willdrafting-/21768.article ) Mr Justice Neuberger accepted that where a client was elderly or ill but not in immediate danger of death preparing a will within seven days would be reasonable.

The court also looked at the effect of delay in Feltham v Freer Bouskell 2013 (https://www.39essex.com/cop_cases/lorraine-studholm-feltham-v-freer-bouskell/ ). In this case the elderly testatrix, gave instructions through her relative, L, to prepare a new will , under which L was to inherit the bulk of C’s estate. The solicitor accepted instructions, subject to an assessment of his client’s testamentary capacity by a doctor which was positive. Unfortunately the solicitor was worried that L might be seeking to take advantage of the testator and so decided to do nothing further unless she mentioned it herself, which she did not, before her death. It was found the solicitor was negligent in failing to proceed with his instructions. It was also found that the solicitor did not proceed with the instruction to the testator’s GP in time as well:

(para 77) “far too long given the instruction to alter the will of a 90 year old lady, and that this was only the first step which needed to be taken before the will could be altered. Mr Ward should have chased Dr Staunton for his report shortly after the conversation on 2 February [when he was chased by the Claimant for news] and if Dr Staunton was not able to produce his report expeditiously, he should have arranged for another doctor to be instructed. He was negligent to do so” (para 76). He continued, “[i]n reaching the view that Mr Ward failed to act promptly, I take into account (i) the fact that he was instructed by a 90 year old lady who was in a nursing home having just lost her long term partner a matter of days previously (ii) the fact he could not reasonably fulfil his instructions until he had satisfied himself through a medical report of her capacity, and thus in any event be some delay (iii) the fact that he would need to visit her in person after obtaining the medical report, so there would be some further delay”

Every case will be decided according to its own unique facts and circumstances. It is clear that a solicitor must though at promptly in accordance with the circumstances and make enquiry where there might be a delay. If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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