Delay in preparing will – professional negligence

Feltham v Bouskell [2013] EWHC 1952 (Ch) looks very alarming at first sight. A Leicester firm of solicitors was held liable in negligence for failing to prepare a will where there were doubts about the testamentary capacity of the client.

Hazel Charlton (the testatrix) was a wealthy 90-year-old (described as ‘feisty’ by Charles Hollander QC, sitting as a deputy judge). She had made a number of wills in the past, most recently in 1992, 1997 and 1998. Since at least 1990 the same firm (latterly the same solicitor) had acted for Charlton in relation to her wills and members of the firm were appointed executors. Her step-granddaughter, Lorraine Feltham, was not a beneficiary in any of these wills. The 1998 will left the residue, after some minor legacies to be divided three ways between: Mrs Atkinson, an 83-year-old cousin; Mr Bhangoo, a friend; and her longstanding partner, John.

On 13 January 2006 John died and, at the suggestion of Lorraine, the testatrix immediately moved into a nursing home close to Lorraine’s home (Fordingbridge).

On 16 January Lorraine telephoned the solicitor to explain what had happened. The attendance note said: ‘All records transferred to Fordingbridge. Short-term memory loss – category 2. HC [Hazel Charlton] had dementia – covered up by John [Fishbein].’

It is a striking feature of the case that all the telephone calls of the solicitor were recorded in attendance notes. Hollander said the solicitor’s ‘taking of notes of conversations was meticulous’.

Events following the phone call inevitably caused the solicitor to have doubts as to the capacity of the testatrix and Lorraine’s motives:

• Both Mrs Atkinson and Mr Bhangoo told the solicitor that the testatrix was suffering from dementia.
• On 24 January the solicitor spoke to the testatrix, who had forgotten a letter he had written. She said Lorraine had been very kind and she wanted to give her something. Later in the day Lorraine phoned to say the testatrix wanted to make a new will leaving the bulk of her estate to Lorraine. The solicitor very properly said that he would need a medical opinion.
• Lorraine typed out the testatrix’s instructions for the will, had them signed by the testatrix and sent them to the solicitor with a covering letter giving details of the testatrix’s doctor, Dr Staunton. She telephoned on 25 January to say that the doctor had asked for direct instructions from the solicitor ‘so as not to cause confusion’.
• The testatrix telephoned the solicitor on several occasions expressing concerns about Lorraine’s actions and suggesting that she was after her money. She did not raise the subject of the new will.
• Throughout February there were various documented conversations about the testatrix’s mental state.

The medical report did not arrive until 2 March. It said that the testatatrix ‘… represents as a strong-willed, independent woman who certainly appears to know her own mind. Her conversation was intelligent, appropriate and well-informed’.

The report concluded that the doctor ‘could find no medical or mental health reason’ why she ‘could not make decisions about her will, and any changes she wished to make to it’.

On 13 March the testatrix lost patience with the delay and asked Lorraine to prepare a new will for her. Lorraine reluctantly complied, using a wills website. The testatrix required various changes before approving the final version on 23 March, which left £50,000 each to Mrs Atkinson and Mr Bhangoo and the (substantial) residue to Lorraine.

Lorraine’s husband arranged for two witnesses and Lorraine to attend on the following day. The witnesses both recalled the testatrix as a bright, alert lady of apparently sound mind with whom they had joked. They said that the testatrix carefully read over the will and then signed it.

The testatrix died on 1 April.

On counsel’s advice Mrs Atkinson and Mr Bhangoo challenged the new will on the basis of want of knowledge and approval. Given that Lorraine, the principal beneficiary, had organised it, there was a heavy burden of proof on her to show that the testatrix knew and approved the contents. He estimated their prospects of success at 70%. After a mediation in December 2007 the proceedings were settled. Lorraine agreed to pay £325,000 to each of them.

Decision

Hollander found that the witnesses had all given truthful, unembellished evidence. Under the principle of White v Jones [1995] 2 AC 207 the solicitor owed a duty of care to Lorraine.

The solicitor had accepted instructions to prepare a will and clearly needed to be satisfied that he had a client who was mentally capable both of giving him those instructions and of changing her will.  

What should a solicitor with doubts do? Hollander said ‘he must either refuse the instructions and make the position clear to the client, or take steps to satisfy himself as to his client’s mental capacity promptly’.

The solicitor had made clear in his letter of 26 January that the capacity issue needed to be sorted out and he promptly instructed Dr Staunton. The letter in effect accepted the instructions, subject to satisfying himself on the capacity issue. By agreeing to instruct the doctor directly, the solicitor took on the responsibility for sorting out, and satisfying himself, of the capacity issue. It was part of his obligation to resolve the issue with reasonable expedition.

Although the judge concluded that the testatrix did have testamentary capacity, he also accepted that, for the solicitor, the circumstances were suspicious. The solicitor said in evidence that he had formed the view that the testatrix did not really want to change her will and had decided that he would take no further action in relation to the will unless she raised the matter with him.

The judge said this was an ‘inadequate’ response. He had three opportunities to raise the matter in separate telephone calls. Although the judge  understood the solicitor’s genuine concern to protect the client, ‘it was not a decision for him to take as to whether it was a good idea for Ms Charlton to change her will’.

The five weeks taken to produce the medical report was far too long a period in the case of a 90-year-old lady. The judge held that the solicitor should have chased for the report, and if Dr Staunton was not able to produce a report expeditiously, he should have arranged for another doctor to be instructed. The solicitor was negligent not to do so.

There is no case law on what is a reasonable time period for a medical report, but the judge suggested on these facts the solicitor should have chased the report after 10 days.

On receiving the report the right course was to visit the testatrix. He was entitled, as a family solicitor, to discuss the proposed changes to her will and to satisfy himself that that was what she wanted. But the decision was hers.

Lesley King, professional development consultant of the University of Law