Analysis
The defendant firm of solicitors had acted for Hazel Charlton (testatrix) of 12 Cecilia Road, Leicester, in relation to a will that she had made on 14 May 1998 (1998 will). The testatrix, who had been previously married twice, had spent the last 20 years with her partner, John Fishbein, latterly living in his house at Barton on Sea. Apart from Mr Fishbein, the residuary beneficiaries of the 1998 will were respectively the testatrix’s cousin, Mrs Atkinson, and friend, Dr Bhangoo. The claimant, who was a step-granddaughter of the testatrix by her second husband, was not a beneficiary. However, as she lived in Fordingbridge, she was able to see the testatrix more regularly when she was at Barton on Sea. On 13 January 2006, when the testatrix was almost 90 years old, Mr Fishbein died. As it was not feasible for her to live alone, the claimant suggested that she move to a nursing home near where she lived in Fordingbridge.
On 16 January, the claimant contacted Peter Ward, the partner of the defendant firm who had prepared the 1998 will, to discuss a number of matters, including the death of Mr Fishbein and the removal of the testatrix to Fordingbridge. Mr Ward wrote to the testatrix (with a copy to the claimant) on 18 January and spoke to her by phone on 24 January. Immediately after that call the testatrix made clear that she wanted to change her will in favour of the claimant who then phoned back Mr Ward and conveyed her instructions. The principal changes wanted by the testatrix were to delete references to Mr Fishbein, bequeath legacies of £50,000 to each of Mrs Atkinson and Dr Bhangoo, and to leave the net residuary estate entirely to the claimant. Mr Ward pointed out, in view of suggestions that the testatrix had dementia, that he would need a medical opinion as to whether she had testamentary capacity. On the same day the claimant left a message for Dr Staunton of Fordingbridge Surgery and sent a letter to Mr Ward containing, typed and signed by the testatrix, instructions to make those changes to her will. At the request of Dr Staunton, on 26 January, Mr Ward wrote asking him to see the testatrix and explained what was required to satisfy the criteria for testamentary capacity. However, he did not write directly to the testatrix in response to her letter of instructions. On 2 February the claimant emailed Mr Ward at the testatrix’s request as to whether there was any news. Mr Ward did nothing but, unknown to him or the claimant, Dr Staunton attended the day after and found the testatrix a strong-willed, independent woman who appeared to know her own mind. He could find no reason why the testatrix could not make decisions about changes she wished to make to her will but, for reasons that were not clear, Dr Staunton did not write his medical report until 27 February. However, in the meantime, Mr Ward had three opportunities to question the testatrix about the instructions that she had given to change her will when telephone calls were made on 14 and 15 February. On none of those occasions did the testatrix refer to those changes and Mr Ward did not raise them himself. On 2 March, five weeks after being instructed, Dr Staunton’s medical report was received by Mr Ward but, even though he learned that the Testatrix had on that day fallen and broken her hip, he did nothing. On, or shortly after, 13 March the claimant was herself asked by the testatrix to prepare the new will and, when she protested that it should be prepared by a solicitor, the testatrix indicated that she no longer wanted Mr Ward to prepare it. A draft was subsequently produced, amended and approved. The new will, which was carefully read over by the claimant, was executed by the testatrix on 24 March.
Shortly afterwards, the testatrix was taken ill and died on 1 April. The claimant sent a copy of the new will to Mr Ward with a covering letter containing unflattering remarks about Mrs Atkinson and Dr Bhangoo. On receipt, Mr Ward sent a copy of the new will together with the covering letter to both Mrs Atkinson and Dr Bhangoo, suggesting that the testatrix may not have known what she was doing when she signed the new will and, in effect, inviting them as residuary beneficiaries under the 1998 will to contest the new will. As a result of taking legal advice, Mrs Atkinson and Dr Bhangoo challenged the new will on the ground of lack of knowledge and approval on the part of the testatrix – the proceedings were settled after a mediation in December 2007 but it was only on 3 July 2008 that a consent order was made dismissing the probate action with no order as to costs. Mrs Atkinson and Dr Bhangoo each received £325,000 for dropping their challenge to the new will and the claimant incurred £62,801.60 by way of legal costs. The claimant then brought proceedings against the defendant firm for professional negligence under the principle in White v Jones [1995] 2 AC.
Held (allowing the claim):
- (1) A solicitor instructed to prepare a new will has an obligation to carry out those instructions within a reasonable time and, in the case of a very elderly testator, there is a particular obligation to carry out those instructions with expedition. Obviously, if a putative testator does not have mental capacity, the solicitor has no client and cannot accept instructions. If he has concerns as to mental capacity, he must either refuse the instructions and make the position clear to the client or take prompt steps to satisfy himself as to his client’s mental capacity. In this case, Mr Ward’s letter of 26 January in effect accepted the testatrix’s instructions subject to satisfying himself that she had mental capacity. He was thus under an obligation to resolve that issue with reasonable expedition so that, for example, if Dr Staunton had not responded to his instruction, he was obliged to chase him up or, if Dr Staunton did not respond promptly, to instruct another doctor.
- (2) Although the claimant was not the client, it was clear from White v Jones [1995] 2 AC 207 that the assumption of responsibility by a solicitor to his client, who had given instructions to prepare a will, extended to the intended beneficiary in circumstances where the solicitor could reasonably foresee that a consequence of his negligence might result in the loss of the intended legacy without either the testator or his estate having a remedy. In this case, it was reasonably foreseeable that the claimant would suffer loss if Mr Ward failed to carry out the testatrix’s instructions and, therefore, the defendant firm owed her a duty of care and she was entitled to maintain an action in negligence against them if it were breached.
- (3) On the basis of the evidence, the testatrix did have mental capacity both on 24 January when she gave instructions to Mr Ward to make a new will and on 24 March when she made the new will prepared by the claimant.
- (4) It was understandable that Mr Ward had a genuine concern that the claimant, whom he had not previously known of, was seeking to take advantage of the testatrix by securing a change of the will in her own favour. However, his perception was partial as the impetus for the change came from the testatrix herself, and it was entirely inadequate for him – as a solicitor instructed by a 90-year-old client to alter her will – to take the view that, because of his concern and the fact that she had not mentioned it, he would take no action until she raised it again. He had, in fact, three opportunities to raise it himself when they spoke on 14 and 15 February. That was not a decision for him to take and Mr Ward’s failure to proceed with the testatrix’s instructions was a breach of his duty of care.
- (5) Five weeks had passed between Dr Staunton being instructed on 26 January and Mr Ward receiving his report on 4 March, which was far too long given the age of the client and the fact that it was only the first step needed before the will could be altered. Mr Ward should have chased Dr Staunton for his report shortly after the claimant asked him whether there was any news on 2 February and, if the report could not be produced expeditiously, he should have arranged for another doctor to be instructed. In general, the older the client, the greater the urgency. Mr Ward’s failure to chase Dr Staunton when he did not promptly receive a report as to the testatrix’s mental capacity was a breach of his duty of care.
- (6) The suggestion by the defendant firm that the testatrix’s decision to have the new will prepared using the claimant herself was a novus actus terminating the instructions and therefore breaking the chain of causation was not an answer to their liability in negligence. The testatrix’s decision to have the new will prepared by the claimant herself was a consequence of the breach of duty.
- (7) As regards causation of loss, if Dr Staunton had been chased by Mr Ward in early February, he would have told him what he had concluded and almost certainly have accelerated his written report. Thereafter Mr Ward would have had ample time to arrange a visit to the testatrix to discuss the proposed changes to her will and complete the drafting process before her fall on 3 March. Even if he had not been obliged to chase Dr Staunton and only came under an obligation on 4 March, the delay to date and his knowledge of the fall would have imposed on Mr Ward an obligation to deal with the matter as soon as she was better and there was time for those instructions to be carried out before the testatrix fell ill on 26 March.
Obiter: the question should not infrequently arise, in a White v Jones case, when a disappointed beneficiary seeks to prove what the testator would have done had the solicitor performed his retainer, whether the testator’s hypothetical conduct is to be assessed on a balance of probabilities or a loss of chance. The point, not previously decided, seemed to fall within the third category of principles distinguished by Stuart-Smith LJ in Allied Maples Group Ltd [1995] EWCA Civ 17; namely to treat the question as to what the testator would have done in the same way as to what a third party would have done, which if the claimant shows that there was a substantial rather than a merely speculative chance, are evaluated as a question of quantification of damages, and thus in percentage terms.
If Mr Ward had drafted the new will as instructed, there would have been no likelihood of any challenge by Mrs Atkinson or Dr Bhangoo. Given the terms of Mr Ward’s letter of 4 April, it was obvious that they were likely to challenge the new will. It was not merely a case of Mr Ward taking sides, but as the solicitor instructed to alter the will and who had failed to do what he had been instructed, it was an inappropriate and misleading letter. As regards the quantification of loss, the defendant firm was liable in damages to the claimant in the sum of £650,000 paid to Mrs Atkinson and Dr Bhangoo and £62,801.60 for legal costs.
JUDGMENT: MR CHARLES HOLLANDER QC: [1] This is a solicitors’ negligence action brought by Lorraine Feltham against Freer Bouskell, solicitors, under the principle in White v Jones [1995] 2 AC 207. Ms Feltham claims that Freer Bouskell were instructed to prepare and execute a new will for her step-grandmother Ms Charlton under which she would …Continue reading "Feltham v Bouskell [2013] EWHC 1952(Ch)"