No waiting room

Preparing wills for elderly clients and those near death can be fraught with issues. Practitioners must satisfy themselves that the testator has testamentary capacity before making the will and, if not, refuse instructions as the unusual case of Feltham v Freer Bouskell highlighted.

Freer Bouskell had been instructed by the testatrix, a long-standing client, to prepare and execute a new will leaving the majority of her estate to her step-great-niece. Doubts about the testatrix’s capacity had been raised. The solicitor sought a report on capacity from her doctor, which he later received, confirming that she had capacity.

The solicitor had suspicions that the step-great-niece had taken advantage of the testatrix and decided to do nothing unless the testatrix raised the subject of the will again (despite a number of communications with the testatrix, the solicitor had not raised the subject).

The testatrix, however, having been ignored by the solicitor, instructed her step-great-niece to make the will (in the terms as proposed), which she did.

Subsequently, after the testatrix’s death, the would-be beneficiaries of the previous will challenged the validity of the last one, which claimed the step-great-niece settled on terms about payments to the claimants. The step-great-niece then brought a negligence claim against the solicitors for damages in respect of the costs incurred in the claim and the sums paid in settlement.

There was a clear finding in Feltham that the solicitor accepted instructions subject to satisfying himself that his client had capacity, but the court also found that it was his obligation to resolve the issue with reasonable expedition. Unfortunately the solicitor had not acted on instructions, of his own volition.

As the judge stated: “…it is entirely inadequate for a solicitor instructed by a 90-year-old client to alter her will to take a view that, because he was concerned that she might be being taken advantage of by the potential beneficiary under the new will, and because she did not mention the will to him when they spoke on the phone, he would take the matter no further until she raised it again.”

The solicitor had also failed to follow up the doctor’s report. It was five weeks between instructions and receipt of the report, which the judge considered far too long given the instructions were from a 90-year-old. The solicitor had a positive duty to chase a doctor who has not responded promptly.

For an elderly testator without a sign of imminent death, the doctor should be chased after about ten days. The solicitor has a positive duty to instruct a second doctor if the first doctor cannot produce a report expeditiously.

Feltham v Freer Bouskell is the subject of an appeal, although it is likely to be concerned with causation. The valuable lesson is that instructions from an elderly client or one near death must be treated with great care and without delay, so observe the following best practice points:

• It is clear that once instructed (even if indirectly) the solicitor has a positive duty to clarify the testator’s intentions. A lack of response or failure by the testator to mention the will in later discussions is no excuse.

• If the solicitor takes steps to obtain evidence of testamentary capacity they are ‘seized’ of it and must follow it through.

• If the GP fails to provide the report within a reasonable period (i.e. not more than one week) the solicitor should chase it up, and if it is not provided expeditiously, instruct another GP.

This last requirement appears onerous. Most GPs are very busy and it will be difficult to provide a report within a week.

Perhaps the testator, with a family member who can assist, could get the GP report. And you provide a guidance note (prepared from the joint Law Society/BMA’s Assessment of Mental Capacity: A Guide for Doctors and Lawyers, 3rd edition) for the doctor’s benefit.

Lloyd Junor is a senior associate at Thomas Eggar

He writes the regular in-practice article on wealth structuring for Private Client Adviser