Lorraine Studholm Feltham v Freer Bouskell

In this case, the court considered a negligence claim under the principle in White v Jones [1995] about failing to prepare a will for a 90-year-old testator.

On 24 January 2006, the claimant instructed the defendant firm of solicitors to prepare a new will for her step-grandmother, Ms Charlton, to replace one made in 1998. Charlton was then living in a nursing home and it was suggested that she might have dementia.

Under the new will, the claimant would benefit significantly. The solicitor acting instructed a doctor to assess Charlton's testamentary capacity, but received the report only a month after the GP's visit. The solicitor did not chase up the report, write to or discuss the new will with Charlton, despite speaking to her many times in the interim.

By March 2006, a new will had still not been prepared for Charlton, and she asked the claimant to prepare one. This was signed and witnessed shortly before her death on 1 April. On being informed of the death, the solicitor notified the beneficiaries under the 1998 will, who subsequently challenged it on grounds of lack of capacity.

The challenge was settled out of court by the claimant paying additional sums to the "ousted" beneficiaries in return for them withdrawing their challenge. The claimant accordingly sought damages for her loss.

The court allowed the claim under the principle in White v Jones because, despite the claimant not being the solicitor's client, it was reasonably foreseeable that she would suffer loss if the solicitor failed to carry out the instructions for Charlton. The assumption of responsibility by the solicitor to Charlton extended to the claimant.

The court noted that where a solicitor is instructed by an elderly client to change a will, and accepts those instructions, they must act promptly: generally, the older the client, the greater the urgency. Where there are concerns about mental capacity, the solicitor must either refuse to act or satisfy themselves as to the capacity promptly.

Added responsibility

By instructing the doctor to assess Charlton, the solicitor had taken on responsibility for resolving the capacity question. He was therefore obliged to chase up the doctor's report, or to instruct another GP. Five weeks had passed between instructions and report. In the court's view, the solicitor should have followed up within ten days and, accordingly, was found negligent.

There was also negligence in failing to act on Charlton's instructions. The court sympathised with the solicitor's concerns over Charlton's capacity and the possible motives of the claimant, who had seemingly appeared on the scene suddenly.

Given his concerns, the solicitor decided to do nothing unless Charlton raised the matter of her will (which she did not).

The court held that if the solicitor had followed up with the doctor, he would have had verbal confirmation that Charlton had testamentary capacity before the report was received. This would have allowed him to visit his client and given ample time to complete a new will before her death.

In addition, if the will had been prepared, there would have been no real prospect of a challenge because the solicitor would not have written to the "ousted" beneficiaries encouraging so. Damages were awarded to the claimant.

See Lorraine Studholm Feltham v Freer Bouskell [2013] EWHC 1952 (Ch)

Heather Viljoen is a solicitor at Michelmores

She writes regular case updates for Private Client Adviser

Copyright & permissions