This article provides an overview of the facts and decision in Feltham v Bouskell [2013] EWHC 1952 (Ch), a case concerning professional negligence by solicitors in the preparation of a will, and the application of the White v Jones principle regarding a professionals duty of care to intended beneficiaries.
Background
Professionals instructed to prepare a will owe a duty of care not only to the testator but also to the intended beneficiaries, as established in White v Jones [1995] 2 AC 207. This duty is particularly heightened where the testator is elderly or infirm, and any delay in preparing the will may result in the loss of an intended legacy.
Where a professional’s negligence results in loss to an intended beneficiary, the beneficiary may have a claim for professional negligence. The court will consider whether the professional acted with reasonable urgency, whether any breach caused the loss, and the appropriate measure of damages.
Feltham v Bouskell – Facts
Hazel Charlton, a wealthy 90-year-old woman, had made several wills, the most recent in 1998. Her step-granddaughter, Lorraine Feltham (the claimant), was not a beneficiary under these earlier wills. The 1998 will left some gifts with residue divided between her cousin Mrs Atkinson, her friend Mr Bhangoo and her long-term partner.
After the death of her partner in January 2006, Charlton moved into a nursing home near Feltham and decided to change her will to benefit Feltham.
Feltham contacted Freer Bouskell (the defendant solicitors), who had prepared the earlier will, to arrange for the new will. Given concerns about Charlton’s mental capacity (she was reported to have dementia), the solicitor insisted on obtaining a medical opinion before proceeding. He wrote to a doctor on 26 January 2006, but the report was not received until 2 March 2006. During this period, the solicitor did not chase the doctor for the report and took no further steps to progress the will.
Due to the delay, Charlton lost patience and instructed Feltham to prepare a new will herself, which was executed on 24 March 2006. Charlton died on 1 April 2006.
The new will was challenged by the beneficiaries under the previous will on grounds of lack of knowledge and approval, leading to a settlement in which Feltham paid each £325,000 and incurred significant legal costs.
Feltham sued Freer Bouskell for professional negligence, relying on the principle in White v Jones.
Feltham v Bouskell – Decision
Several issues were considered by the court.
1. Duty of Care
The court reaffirmed the principle in White v Jones that a duty of care is owed not only to the testator but also to the intended beneficiary, where it is reasonably foreseeable that the beneficiary would suffer loss if the professional preparing the will failed to carry out the instructions
2. Breach of Duty of Care
The court found that the solicitor, by writing to the doctor, had accepted instructions to prepare the will, subject to being satisfied as to capacity. Given Charlton’s age and the urgency of the situation, the solicitor was under a duty to act with reasonable expedition.
The five-week delay in obtaining the medical report was excessive. The solicitor should have chased the doctor after about 10 days and, if necessary, instructed another doctor. It was negligent to not do so. The solicitor’s failure to progress the matter, including not raising the subject of the new will in subsequent conversations with Charlton, was a breach of duty.
3. Break of Chain of Causation
The court rejected the argument that Charlton’s decision to have Feltham prepare the will herself was a new intervening act breaking the chain of causation. This decision was a direct consequence of the solicitor’s breach. Had the solicitor acted promptly, the will would have been prepared and executed by him, and it was unlikely to have been challenged on the basis of lack of knowledge and approval.
4. Damages
The court held that, had the solicitors acted promptly, the will would have been prepared and executed without challenge. The damages awarded included the sums paid to settle the challenge and Feltham’s legal costs.
Conclusion
Feltham v Bouskell serves as a reminder of the importance of acting with reasonable speed when preparing wills, particularly where the testator is elderly or vulnerable. Professionals must be proactive in progressing matters, especially when awaiting third-party reports, to avoid the risk of professional negligence claims from disappointed beneficiaries.
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