Professional Negligence

[mandate7]

My wife's aunt who was 90 years of age and in a bad state of health, wanted to make a will about a week before her death.
An appointment was made but because of her deteriorating state of health , was unable to attend. The solicitor had said if he was summoned he could attend the old lady's home in 15 minutes.
The client asked for the solicitor be called to come out and make the will (it was made clear what the clients testamentary intentions were) leaving her house and grounds to my wife. But when phoned, the solicitor said he had an appointment that afternoon, and would come out the following morning at 11 am.
The client was found dead in her home at 8. 20 am that morning.
Surely the solicitor had a duty not only to the client, but also to the would be beneficiary, who was personally known to the solicitor.
Can somebody advise me. ?

[redcrx]

and what about the clients he was already booked to see? theres a duty of care there. Presumably the 15mins meant if he was appointment free.

[dzug2]

I can't see the slightest trace of negligence there.

It really is a bad idea to leave making a will until the last minute.

[Nosha123]

I doubt there is a case for negligence... but wonder whether her wishes were expressed to him verbally whether he could construct a will AFTER her death based on her verbal consent??? I am not a legal expert so dont know whether you can... you probably cant....

[bednobs]

have to say i agree with the others. The testator was perfectly able to call a different solicitor and see if they were free if the one she originally wanted wasn't free at the v ery moment she wanted him. Perhaps his other appointment was also with someone who was dying.
i can see no negligence at all.

[dzug2]

No the solicitor cannot construct a will on the basis of her verbal instructions.

However the beneficiaries of her existing will (or intestacy if there wasn't one) can agree to execute a Deed of Variation that would have the same effect.

[sherrardk]

I take it that the original will leaves the house and grounds to someone other than your wife and you are looking for someone to blame?

[mandate7]

To "SherrardK". It is not a question of looking for somebody to blame ! The aunt had previously made a will naming my wife as beneficiary to the property and she had revoked it because of undue influence which we cannot prove. She wanted to reinstate that will.

[lcg]

bingo! x

[bednobs]

well even if there had been negligence (which there clearly isn't) how helpful would that be?
i am presuming that as the aunt died intestate, that her estate will now be distributed under the intestacy laws, and you feel it's not who she would have wanted things to go to

[dzug2]

Deathbed wills are also at risk of being challenged (whether successfully or not is another matter) on the grounds of undue influence.

It could be worth establishing whether that earlier will was ever properly revoked or was something else she never got around to.

[factor-fiction]

I can't see how intentions stated over the telephone could constitute a will. For example could the identity of the caller be verified, could the solicitor be sure the caller wasn't speaking under duress, would all the finer details have been set out in the phone call (I doubt it), and did the aunt have chance to see the full 'will' and check it?

[Barmaid]

Mandate your wife must absolutely seek legal advice. Whilst the other posters say there is no negligence, this is fact sensitive. I cannot say she has a good case, but it is not as woeful as the other posters make out. If you can read White v Jones, that gives an overview of the law in this area, there are further cases on point. Please seek the advice of an appropriately qualified lawyer.

To those who say there is no negligence, with respect, unless you have considered the full tests of negligence together with the facts, it is impossible to say. I can't say, but what I can say is that the OP needs further specialist advice.

As to your final question OP, yes, the solicitor does owe a duty to the beneficiary. This was first suggested in Ross and Caunters and confirmed by the HoL in White v Jones.

[bednobs]

well barmaid, i of course bow to your superior knowledge but must admit i am flabbergasted! Would you mind explaning a bit more about what sort of facts could alter things?
ps mandate7 barmaid knows her stuff, so listen to her, not me!

[Barmaid]

It's one of my "pet" subjects Bednobs. I'll give you chapter and verse tomorrow. Meanwhile, I have had a long and difficult week and I am completely jiggered. Bed for me.

If you want to do some background reading White v Jones is a fair place to start and Gartside v Sheffield young and Ellis (I think from memory, I could be wrong) is almost on point. I think they are both on baiili.org.

Night!

[buildersmate]

Which is perhaps a salient reminder to the regular amateur lawyers on here who throw out advice like confetti which often turns out to be wrong.
This is why I stick to the legal topics that I know something about - land law and employment law.

[factor-fiction]

You are of course right, buildersmate- and that is why there is a warning on the Law section. It can indeed be true that a little knowledge is a dangerous thing. However if we only ever contributed to threads in which we had expert knowledge then I think Barmaid would often be on her own on the thread would be blank if Barmaid didn't see it.
For most cases on the legal section the best advice is almost always "see a solicitor".

In this case I would still be very surprised if there could be any professional negligence here (unless the negligence is that he failed to act upon a duty of care to the benficiary) but I look forward to an update from mandate7.

[mandate7]

FAO : Barmaid. Thank you for sharing with me. Your answer
is the only one that displays knowledge regarding such matters. I have read the cases to which you refer and others, prior to asking my question. The solicitor accepts that he received the phone call from the would be executor to the will.
(the testatrix had lost her voice and could speak only in a whisper)
He was also aware of the clients testamentary intentions.
The problem is, where to start. I would imagine that it would be difficult to find a solicitor to bring charges of professional negligence against another solicitor .

[boxtops]

I still don't see how the solicitor could be professionally negligent. When he stated before that he could be there in 15 minutes, surely there is an emplied caveat which meant "generally, depending what else I've already got in the diary", not "I'll drop everything and come over"?

[buildersmate]

F30 - I wasn't addressing my remark towards you. Sorry if you took it that way.

[Barmaid]

Sorry, I haven't had time to address this. It depends on his assumption of responsibility. A reasonable time is always implied, but that is fact specific, for someone on their death bed the time is shorter, for someone elderly and in ill health slightly longer etc. Plus there are simply not enough facts here - it looks like the solicitor was fully aware of the deceased's intentions and her health. Given that she was in such a poor state, I also question whether an emergency application for a statutory will should have been made.

I do not say the solicitor is definitely negligent, however, there is enough here for me to say to the OP "seek proper advice based on the facts".