Wills, doubts over capacity and professional negligence – Feltham v Bouskell  EWHC 1952
This case will shock many practitioners. This salutary tale shows how even when a medical report is obtained where there is doubt over capacity and meticulous notes of conversations are kept, a practitioner can be negligent if they do not act quickly enough, do not chase up the medical report and are not proactive in checking instructions with the testator. Doubting the motives of a newly-on-the scene family member who benefits under the new Will, does not mean that no action should be taken to progress matters.
Hazel Charlton, described as “a feisty old lady with a strong personality” had been previously married twice and lived for 20 years with her partner John Fishbein, spending the majority of their time until 2002 on round the world cruises. In 2002, they moved into John’s house and Hazel then saw her step-granddaughter Lorraine Feltham more regularly as she lived nearby.
In January 2006 John died and as Hazel was then nearly 90, Lorraine suggested she moved into a nursing home on her road as Hazel was unable to live alone.
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Hazel had made Wills in 1992, 1997 and 1998 with a codicil in 2003 which replaced an executor and had used the same firm of solicitors on each occasion. Lorraine was not a beneficiary under any of these Wills. On 16 January 2006, 3 days after Hazel had told her of John’s death Lorraine phoned Peter Ward the solicitor who had prepared the 1998 Will and 2003 codicil, to tell him of John’s death and that Hazel had moved to a nursing home. The attendance note records that Lorraine also told the solicitor that Hazel had dementia, although Lorraine denied this comment at trial.
Two days later the solicitor sent a letter to Hazel with a copy to Lorraine, expressing his condolences on John’s death. After subsequent phone conversations with Lorraine about ancillary matters connected with the move to the nursing home, Hazel spoke to the solicitor herself about John’s death on 24 January. His note records that although Hazel was clear, she did not remember his 18 January letter to her. He recorded that she said Lorraine had been very kind to her and that she would be giving her something. The solicitor thought at that time that this referred to a lifetime gift rather than a change to her Will, but did not particularly give this issue much thought.
Lorraine’s evidence was that immediately after this conversation Hazel told her she wanted to alter her Will to make provision for Lorraine. Lorraine therefore phoned the solicitor back and told him of Hazel’s detailed instructions for her new Will, which other than legacies to her cousin Margaret Atkinson and friend Dr Bhangoo (previously the residuary beneficiaries along with John) left everything to her. The solicitor told Lorraine he would need a written medical confirmation that Hazel had testamentary capacity before he could draw up a new Will and Lorraine said she would contact Dr Staunton, Hazel’s GP following her move to the nursing home.
Lorraine typed Hazel’s instructions out that day and once Hazel signed them sent them to the solicitor.
Also on that same day Lorraine rang the surgery and asked Hazel’s GP to visit her to ascertain if she had capacity to make changes to her Will. As the GP requested confirmation of the solicitor’s requirements, the solicitor wrote to the GP on 26 January setting out the background and explaining in some detail the current testamentary capacity guidance in the joint BMA and Law Society book.
The solicitor wrote not direct to Hazel acknowledging her Will instructions but to Lorraine, saying in evidence that he expected Lorraine to let her know. Lorraine contacted the solicitor over the next few days to see if he had heard from the GP, but he had not. During the course of February Hazel’s cousin Margaret expressed concern to the solicitor over Hazel wanting to change her Will in favour of Lorraine, saying Hazel had dementia. On 14 February the solicitor rang Hazel having received a message from Hazel’s friend Dr Bhangoo that she wanted him to do so. Hazel couldn’t remember what she wanted to speak to him about but according to the note of the conversation did say “Don’t let Lorraine take over. She is after her money, she said.” The solicitor did not raise the Will instructions with Hazel during that conversation or when he spoke to her again on 15 January about ancillary matters. Lorraine reassured the solicitor that Hazel was suffering from paranoia and explained her actions to him. He wrote to Hazel explaining Lorraine’s actions but not mentioning anything about the new Will.
Unknown to both Lorraine and the solicitor, the GP attended Hazel on 3 February and assessed her testamentary capacity. The GP didn’t write his report until 27 February and the solicitor received it at the beginning of March. The GP stated that she scored eight out of ten in a memory test and “could find no medical or mental health reason why Mrs [Hazel] Charlton could not make decisions about her will, and any changes she wished to make to it.” Despite this report, in view of his concerns and the fact that Hazel had not mentioned changing her Will in their several phone conversations the solicitor made up his mind that Hazel did not want to alter her Will. He would only act if Hazel herself raised the matter.
Around 13 March following her return to the nursing home after an operation to repair her broken hip after a fall, Hazel insisted on Lorraine drawing up her new Will for her. She refused to listen to Lorraine’s encouragement to use a solicitor and said she didn’t want Peter Ward of Freer Bouskell to be instructed anymore. Lorraine used a wills website and produced various drafts until Hazel approved the final version. Hazel signed this on 24 March in front of two witnesses arranged by Lorraine’s husband. Both witnesses gave evidence that they found Hazel to be bright and alert.
The 24 March 2006 Will appointed Lorraine and the solicitor as two of her executors and after legacies to Dr Bhangoo and Margaret of £50,000 each and to another friend of £10,000, left everything to Lorraine. The solicitor was not told of this Will but was sent a copy by Lorraine following Hazel’s death on 1April.
Margaret and Dr Bhangoo challenged the 24 March 2006 Will on the basis of lack of testamentary capacity. Lorraine settled their claim by making payments to them.
Lorraine brought a negligence action against the solicitor claiming that Hazel had instructed him to prepare a new Will for her under which Lorraine would have been the main beneficiary. Lorraine claimed that the solicitor was negligent in failing to prepare the Will so Hazel had asked Lorraine to prepare a Will instead. Lorraine argued that if the solicitor had prepared the new Will, rather than her, the new Will would have been unlikely to have been challenged.
The judge stated that the law in this area was that:
A solicitor instructed to prepare a new Will has an obligation to carry out those instructions within a reasonable time. Where a solicitor acts for a very elderly client, there is particular obligation to carry out those instructions expeditiously as it is foreseeable that the testator may not live for long. Although caselaw doesn’t set out what constitutes a reasonable period of time as it will be specific to each case, “the older the client, in general, the greater the urgency.”
The courts have recognised that even comparatively short delays by a solicitor may be negligent Hooper v Fynmores (a firm)  WTLR 1019 although the length of delay and the question of negligence will be specific to the facts of each case.
A solicitor is obliged to clarify the precise scope and extent of his retainer if necessary Gray v Buss Murton  PNLR 882.
If a client does not have mental capacity and a solicitor is instructed to prepare and execute a Will for them, the solicitor can’t accept the instructions and has no client. If the solicitor has concerns about mental capacity, he must either refuse the instructions while making the position clear to the client or take steps to promptly satisfy himself as to such mental capacity.
White v Jones  2 AC 207 as extended in Carr-Glynn v Frearsons  Ch 326: the assumption of responsibility by a solicitor to his client who had given instructions for a new Will extends to an intended beneficiary under the proposed Will where the solicitor could reasonably foresee that a consequence of his negligence might result in the loss of the intended legacy and neither the testator nor the estate has a remedy against him.
The judge held that the solicitor owed Lorraine a duty of care under the White v Jones principle and she was therefore entitled to bring an action for negligence against the solicitor.
The judge found that the solicitor’s letter of 26 January saying that he needed to be satisfied about capacity before he would prepare a new Will was an acceptance by the solicitor of the Will instructions, subject to satisfactory evidence of such capacity. This was added to when the solicitor instructed the GP on the details of testamentary capacity and he therefore took on the responsibility for obtaining evidence to satisfy himself of capacity.
The judge found that Hazel had the necessary mental capacity both on 24 January when she instructed the solicitor and on 24 March when she signed the Will. He referred to Dr Staunton’s 27 February report which stated that in his opinion she had testamentary mental capacity. She may have suffered from a measure of paranoia and would have had good days and bad days only. Her directions for the terms of her new Will were detailed and precise both on 24 January and later in March.
As the solicitor had undertaken the capacity question as part of his instructions and this was a case of a 90 year old client it was his obligation to resolve this with “reasonable expedition”. The solicitor should have chased Dr Staunton for his report after 10 days in this present case and if he could not produce a medical report quickly enough, he should have instructed another doctor. “He was negligent not to do so.”
He found that the solicitor’s “taking of notes of conversations was meticulous…..He was a careful, precise and an entirely reliable witness.” Unfortunately for the solicitor, despite this view of his character, the judge found that he failed to act promptly in this case of a 90 year old client who had recently lost her long-term partner and his actions were “entirely inadequate”. The judge expressed understanding for how the solicitor could have concerns over the possibility of Lorraine taking advantage of seemingly vulnerable Hazel, but this was only part of the picture and was incorrect. The judge found Margaret’s concerns over Lorraine’s motives to be unfounded and that Lorraine was “an entirely truthful witness” who acted with great integrity throughout. She had wanted to keep out of the Will process as much as possible and had questioned Hazel on if she really wanted to leave everything to her, even suggesting alternatives.
Despite genuinely wanting to protect Hazel it was not acceptable for the solicitor to decide not to take the matter further when he thought she was being taken advantage of. He should have raised the proposed Will instructions with Hazel herself during one of their phone conversations and should have visited Hazel in person despite the distance to ascertain if the instructions were hers. This should have been done as soon as possible too. He was therefore negligent in not dealing with his instructions from Hazel.
The fact that Hazel insisted Lorraine draw up her Will for her did not terminate the solicitor’s retainer but was borne out of frustration at the delay by him.
The solicitor should have been able to complete the Will process in the time available and there was therefore the necessary link of causation of loss to Lorraine. The judge found that if the solicitor had drafted the Will as per the instructions he received the legatees would not have challenged it. He referred to dictum of Mummery LJ in Hawes v Burgess  WTLR 453 that a court should not be too ready to find a lack of mental capacity if a Will has been drafted by an experienced independent lawyer who had no doubts about capacity. A court should be cautious in preferring the non-contemporaneous evidence of a medical expert who had not met the deceased.
Lorraine was therefore entitled to recover the sums she had paid to the legatees to settle their challenge to the 24 March 2006 Will and her costs of that action.
- Act as quickly as possible on receipt of instructions where elderly or ill clients are concerned to ensure that the Will process is as short as possible in the circumstances of each client. The older the client, usually the more urgent it is.
- Be proactive with clients when you are told they want to change their Wills by someone else! Don’t wait for them to raise an issue such as changing their Wills themselves but contact them (ideally when anyone whose motives you are concerned about is not around) and ask them about their proposed new Will. Ideally, arrange a face to face meeting with them.
- If you take on the responsibility for satisfying yourself of the testator’s capacity in obtaining a medical report state that the matter needs to be dealt with promptly. Make any need for urgency clear in your initial letter. Consider having a precedent letter you use.
- If there is a delay in receiving a medical report chase it up. If that doctor isn’t going to produce one quickly enough, consider instructing a different doctor.
- Once you receive a report on capacity from a doctor, see the client in person as quickly as possible to discuss their instructions.
- Should you consider preparing a Will, and having it executed, before obtaining a medical report, even if you have doubts about capacity, to protect yourself from a negligence claim?