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CONTESTING A WILL – DUTIES OF SOLICITORS IN RELATION TO WILLS

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the duties of solicitors in relation to the formation of Wills.

What duties do Solicitors have in relation to the formation of Wills?

We have previously considered how a solicitor not complying with the so-called “golden rule” to have his client assessed for mental capacity in certain circumstances before completing a Will for him/her, isn’t necessarily negligent (https://www.willclaim.com/5-things-aware-claiming-lack-testamentary-capacity/).

This is not always the case. Solicitors have quite onerous duties in relation to the formation and execution of Wills; in general to comply with the testator’s (the Will maker’s) instructions and to do so promptly. Here are some examples:

  1. Not to make errors in relation to the execution or attestation of the Will (to ensure it was signed by the person making the Will in front of two witnesses who each then signed it as well)

In Ross v Caunters 1980 Ch 297 ( https://swarb.co.uk/ross-v-caunters-a-firm-chd-1980/) the Court upheld a finding in negligence against a firm of Solicitors for failing to ensure the correct attestation of a Will and awarded damages in favour of the disappointed beneficiary. In this instance the Will had been witnessed by the spouse of a beneficiary. Section 15 of the Wills Act 1837 applied (https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/15 ). This states:

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.

  1. To ensure that a property or share of a property specifically gifted by a Will formed part of the deceased’s estate on his/her death

This is a situation which can potentially arise where a property is held jointly by the person making the Will with another. A certain type of joint ownership means that on death the share of the deceased doesn’t form part of his/her estate to be passed under the terms of his/her Will, but actually passes automatically to the other joint owner. It sounds bizarre, but this is often a cause of considerable confusion (see our earlier blog at https://www.willclaim.com/property-co-ownership-challenging-wills/).

In Carr-Glynn v Frearsons (a firm) 1998 4 All ER 225 (https://www.bailii.org/ew/cases/EWCA/Civ/1998/1325.html ) the Solicitor failed to ensure that severance of an equitable joint tenancy happened prior to the death of the testator, resulting in the right of survivorship operating and the gift of the property via the Will on his death failing. Per Lord Justice Chadwick: if solicitors who, in the course of carrying out the testator’s testamentary instructions, have failed to take care to ensure that the relevant property forms part of the estate are liable to compensate the specific legatee for the loss which he has suffered as a result of the breach of duty owed to him; and are liable to compensate the estate for the loss (if any) suffered by the other persons interested in the estate for breach of the duty owed to the testator.

  1. To ensure that he acts on his instructions promptly (to complete the Will before the testator’s death)

We have discussed this in a previous blog at https://www.willclaim.com/contesting-a-will-can-a-disappointed-beneficiary-sue-the-solicitor-who-failed-to-prepare-the-will-in-time-second-part/

Here are extracts from our conclusions:

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”

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 or visit us at www.willclaim.com.

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