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. ?

[factor-fiction]

The law is a complex subject and throws up some very surprising results sometimes. Yes, mandate7 needs a solicitor - this is far too complex a matter for AnswerBank to provide a definitive answer.

But in these times of security questions/customer confidentiality etc I find it very difficult to imagine that a phone call made by the would be executor on behalf of someone who had lost her voice would carry much weight and lead to a will being overridden

[factor-fiction]

Hi buildersmate- I thought your point was a good one and I knew it was a general comment at several posters.

[Barmaid]

Factor, it is not the case that the will is being overridden. The Will (if there was a valid one) will stand. The issue is whether the disappointed beneficiary can claim against the solicitor's PI insurance. Generally, a disappointed beneficiary does have a cause of action - whether it is made out in this case is the question the OP needs to ask his solicitors.

[mandate7]

Factor 30 and others. I think it would be a good idea to read a question before you volunteer an answer. You are only displaying your ignorance !

[factor-fiction]

I read your original post carefully.
Your original question was "Can someone advise me?". Many of us did advise you. A common piece of advice was "consult a solicitor".
If you think that shows we are ignorant then that's your prerogative.

[Barmaid]

For some reason, I didn't see Mandate's response to me at 13.45 yesterday - apologies. Mandate, it is actually easier than you think to get a solicitor to sue another for professional negligence. You need to find a firm who deals with (even specialises in) professional negligence. failing that, seek the advice of Counsel direct - one who has "Direct Access" and specialises in Chancery and professional negligence. (Direct Access means that you can go straight to a barrister rather than seeing a solicitor first, but said barrister has to be licensed to do DA - consult the Bar Directory on the Bar Council's website as to likely candidates).

I am slightly concerned about the circumstances in which you say Aunty's Will was revoked - how exactly was it revoked and in what circumstances?

I really do feel that independent advice is in order here. Clearly on a website you can only condense the facts into a few short paragraphs and the devil is always in the detail in these cases. The last set of instructions I received on such a matter went to 21 pages!!!!!!

[factor-fiction]

Hi Barmaid- I am always keen to learn and would be grateful for your thoughts on what outcome would be sought when suing for professional negligence in a case like this. Would the professional negligence claim seek compensation (to be paid from solicitor's insurance policy) for the benefits that the potential benficiaries would have got if the last minute changes to the will had been actioned?

[Barmaid]

That's precisely it Factor.

The contract between a solicitor and a client only provides the client with redress in breach of contract or concurrently in negligence. English law does not recognise a breach of contract being able to provide damages for a third party (apart from the Contracts (RIghts of Third Parties) Act 1999 which does not cover this area). When White v Jones went to Court their Lordships (on a majority - not unanimously) decided that this lacuna in the law needed addressing - although it was somewhat ironic that their lordships who were all of a similar age to the testator took several months to deliver their judgement, but I digress......

Anyway, it was decided that - subject to the retainer - the solicitor owed a duty of care to a beneficiariy who was disappointed as a result of their negligence. The lacuna to be addressed was the fact that technically, only the executors had a cause of action against the negligent draftsman but of course, the "estate" hadn't lost, but potential beneficiaries had.

Other examples include:-

Failure to advise testatrix to sever joint tenancy on making a will - Carr Glyn v Frearsons
Failure to ensure that the will was properly executed - Esterhuizen v Allied Dunbar

There are some good lecture notes here:-

http://tenoldsquare.c...ce%20in%20Probate.pdf

Absolutely fascinating area though.

[factor-fiction]

Thanks Barmaid.

Maybe I am too ignorant and maybe a bit stubborn but I still would be very surprised if a professional negligence claim here would be successful and would achieve the outcome that the claimants may be hoping for.

I am still not clear how much reliance a solicitor would be expected to place (and hence the duty of care that results) on a phone call made by someone on behalf of someone who had lost their voice, asking for a change to the will in favour of the speaker. Or does that not matter? Does such a call hold just as much weight as a face to face meeting with the client and beneficiary in person?

[mandate7]

Factor 30
Let me try and spell it out for you (ha,ha). About the phone call.
The solicitor in question was solicitor to would be executor, and also to the would be beneficiary, also to the testatrix.
Each one was know to him personally as he had conducted
business with them in the past.
Knowing each one personally as been honourable people, don't you think he would accept the telephone call and instructions as being authentic. !.
Sorry for being a little harsh in my earlier criticism.!.

[mandate7]

Barmaid ! Thank you for your posting 20.56 Sund.
Info. re revocation as follows: The aunt made a will in January 2007 naming my wife as main beneficiary, but a younger sister
to the aunt and who did not stand to benefit from the will, saw that she or her daughters would benefit from intestacy.
She therefore set about to get the will canceled, by poisoning the mind of the testatrix against my wife and myself. (the aunt relayed her comments to us).
It appears that in October 2007 the Testatrix called with her solicitor and revoked the will (the circumstances of the act of revocation are unclear) but we can only accept the solicitors account, that the testatrix called and asked for her will, which was brought to her and destroyed in her presence.
No new will was made, and it was about a fortnight before she died that she dismissed the younger sister, and told her not to come back to visit her.
It was then that she sent for my wife and the executor and stated that she very much wanted my wife to have her house and grounds, and wanted the will sorted.
The last words from the aunt to my wife after the solicitor had been phoned and instructed, were: "I am happy now that you are going to have my house and garden.

[factor-fiction]

^"She therefore set about to get the will canceled, by poisoning the mind of the testatrix against my wife and myself."

Beneficiary and executor makes a phone call on behalf of the very ill old lady (because she had lost her voice) asking for the will to be amended in his favour.

Maybe I read too many novels in my youth but I know what Hercule Poirot's littl grey cells would have been busy. Apologies if that has distorted my thinking on this one, Mandate7.

I hope Barmaid's advice helps you and hope you can update us