- October 9, 2018
- By Clare Kelly
- 0 comments
What happens when a new Will is not made in time?
Many people choose to make a will (or change their will) towards the end of their lives – perhaps because they suddenly realise that it is now or never, or perhaps because they rethink things and want to change the provision which has been made (particularly if they have outlived their partner). Making a will for someone who is elderly has to be done with extreme care – to ensure that they have capacity to make the will, and to ensure that they are not being unduly influenced by another person.
However, solicitors making wills for those approaching the end of their life also have to be careful to ensure that they act with sufficient haste. There is a danger that they will not have much time, and they can be sued for negligence in the event that they unduly delay in drafting a will (following White v Jones  2 AC 207).
In the case of Feltham v Bouskell  EWHC 1952 Ch, a firm of solicitors was sued for negligence when they failed to prepare a will fast enough. The case concerned the estate of Hazel Charlton, who was 90 years old. She had made wills in 1992, 1997 and 1998 using the same firm of solicitors, who knew her well.
Her 1998 will left some minor legacies, with the remainder to be divided into three equal shares – for her partner, a friend and a cousin. In January 2006, her partner died and she then moved into a nursing home near her step-granddaughter. Her step-granddaughter called the solicitors within a few days to explain what had happened, and to confirm that Hazel Charlton had dementia.
Approximately a week later, the step granddaughter called back and said that Hazel Charlton wanted to make a new will leaving her the bulk of her estate. The solicitor said that he would require a medical opinion before he could draft such a will, and contacted her doctor to obtain that. On several occasions Hazel Charlton called the solicitor expressing concerns about her step-granddaughter’s motives, and saying that she felt she was after her money.
A report was eventually received from the doctor on 2 March 2006 confirming that Hazel Charlton had capacity. A will was not made – the solicitor explained at Court that he had formed the view that Hazel Charlton did not really wish to make one so had not mentioned it again.
By 13 March 2006, Hazel Charlton had lost patience with the solicitors, and asked her step-granddaughter to draft a will which she did with the help of a will making website. Her husband organised witnesses and the will was properly executed. Hazel Charlton died on 1 April 2006.
Two of the previous beneficiaries brought proceedings to have the will declared invalid on the grounds that Hazel Charlton had not known and approved of the contents. Their barrister gave them very high prospects of success (primarily because the step-granddaughter had prepared the will and also stood to gain substantially from it), and the case was settled at mediation with the step-granddaughter agreeing to pay each of them £325,000. She then started professional negligence proceedings against the solicitors for having failed to make a new will which may have been less open to challenge.
The step-granddaughter won her claim. The Court found that the solicitors had taken on the responsibility of making the new will. They were right to have suspicions about capacity and to commission a medical report. However, they should have chased that will more quickly (after 10 days). The question of whether Hazel Charlton really wanted to make a new will was one for her alone – it may not have been a good idea, but she had the right to decide what to do with her estate rather than the solicitor who just ignored the issue.
This case shows the efforts which the Court will expect someone to go to when given instructions. For advice on challenging a will or defending such a challenge, or professional negligence proceedings arising out of will preparation or the administration of an estate, please contact a member of our contentious probate team.