A solicitor’s duty to make enquiries where the testator’s capacity is in doubt

A lack of testamentary capacity is arguably the most commonly pleaded claim by disgruntled family members that are not happy with the contents of a deceased’s will. Charities named as beneficiaries in a will are often on the receiving end of such claims, but can also find themselves as being the one to make the claim in certain circumstances. The recent case of Feltham v Bouskell [2013] concerning that specific topic therefore makes for an interesting read.

In this case the Claimant, Lorraine, was the step-granddaughter of the testatrix, who was a wealthy elderly woman. The testatrix had made several wills in her lifetime, never naming Lorraine as a beneficiary in any of those wills. The testatrix’s solicitor received a call from Lorraine on 24 January 2006 saying that her grandmother wished to change her will leaving the bulk of her estate to Lorraine. Given the sudden departure from the wishes expressed in her previous wills, the solicitor in question decided he wished to instruct a doctor to ensure the testatrix had the requisite testamentary capacity.

Despite the doctor being instructed relatively promptly, the medical report was only received on 2 March 2006. The solicitor had not chased the doctor in this period. However, in the meantime the testatrix had lost patience with the delay and therefore asked Lorraine to prepare a new will for her using a wills website. The final version of the will drafted left £50,000 each to a Mrs Atkinson and Mr Bhangoo and the substantial residue to Lorraine.

The testatrix died eight days after the will was signed. It therefore came as no surprise when the will was contested, resulting in the matter being settled at mediation. Lorraine then pursued the solicitor for professional negligence, stating that the solicitor fell short in his duty to quickly satisfy himself that the testatrix was of sound mind when wishing to alter her will.

Lorraine was successful in her claim, with the judge stating that the solicitor was negligent in failing to act promptly in terms of obtaining a medical report. In his view, five weeks was “far too long given the instruction to alter the will of a 90-year-old lady”. Substantial damages were therefore awarded to Lorraine to reflect the sums paid by way of settlement of the claims brought against the most recent will.

Charities that become involved in testamentary capacity cases should take note of this decision. In particular, whether they are bringing a claim for lack of testamentary capacity or alternatively defending such a claim, they must remember to always fully investigate the position regarding the preparation of the will and the role that the solicitor had in that process.

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