Mental Capacity Case

Lorraine Studholm Feltham v Freer Bouskell

Charles Hollander QC (sitting as a Deputy High Court Judge)
[2013] EWHC 1952 (Ch)

Summary: This professional negligence case warrants short mention because of the approach adopted by the Judge to the (not uncommon) situation where a solicitor has doubts as to the testamentary capacity of the person who seeks to instruct them to execute a will. Freer Bouskell were instructed by the Claimant's step-grandmother to prepare and execute a new will for her; they did not do in a timely fashion. In consequence, her step-grandmother asked the Claimant herself to make a new will for her. This will was challenged by two persons who would have benefited under the old will; the Claimant settled the challenge by making additional payments to them, and she brought a claim in negligence against the solicitors on the basis that, had they been instructed to do it, it was most unlikely that it would have been challenged.

For present purposes, the two aspects of the judgment that are of significance are those dealing with the duties upon solicitors instructed to prepare and execute wills, and the consideration of the actions/omissions of the solicitor in question in light of those duties.

Charles Hollander QC emphasised (at para 51) the uncontroversial proposition that a solicitor instructed to prepare and execute a new will has an obligation to carry out those instructions within a reasonable period of time, and that where the testator is very elderly, there is a particular obligation to carry out those instructions with expedition as it is foreseeable that the testator may not continue to live long. If a solicitor has concerns as to the client's mental capacity, he must either refuse the instructions and make the position clear to the client, or take steps to satisfy himself as to the client's mental capacity promptly (para 53). In the instant case, the judge found that the solicitor had accepted his instructions subject to satisfying himself that his client had capacity, such that it was his obligation to resolve the issue with reasonable expedition.

Charles Hollander QC had a degree of sympathy with the position that the solicitor found himself in: he had known his client for a number of years. He knew the contents of her will; suddenly her step-grandniece comes onto the scene and within days his client wanted to change her will to leave the majority of it to her. At paragraph 66, the judge noted that he considered the solicitor to be an honest and meticulous witness who "on the evidence available to him […] must have had a genuine concern that Ms Feltham, having come on the scene at the last minute, was now seeking to take advantage of a vulnerable old lady by securing a change in the will in her own favour." The problem was that, for reasons that need not detain us here, the judgment was made by the solicitor based on the picture seen by himself and it was only a partial picture which was, in fact, entirely inaccurate.

In consequence of his (inaccurate) understanding of the position, the solicitor decided that he would take no action about making a will unless it was specifically raised again by his client. It was, however, "entirely inadequate for a solicitor instructed by a 90 year old client to alter her will to take the 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. He had three opportunities on the telephone on 14 and 15 February to raise the matter himself but decided not to mention the subject. He simply never raised the subject. I can understand that Mr Ward was genuinely motivated by his desire to protect his client. But it was not a decision for him to take as to whether it was a good idea for Ms Charlton to change her will and, as I have explained, the erroneous view he reached as to what was happening as between Ms Charlton and Ms Feltham was based on the limited information available to him" (para 72).

The judge also found that the solicitor had failed to act promptly in terms of obtaining a medical report: he instructed the doctor on 26 January, but did not take any further steps prior to receiving the report on 4 March, some five weeks later. This was, in the view of the judge, "far too long given the instruction to alter the will of a 90 year old lady, and that this was only the first step which needed to be taken before the will could be altered. Mr Ward should have chased Dr Staunton for his report shortly after the conversation on 2 February [when he was chased by the Claimant for news] and if Dr Staunton was not able to produce his report expeditiously, he should have arranged for another doctor to be instructed. He was negligent to do so" (para 76). He continued, "[i]n reaching the view that Mr Ward failed to act promptly, I take into account (i) the fact that he was instructed by a 90 year old lady who was in a nursing home having just lost her long term partner a matter of days previously (ii) the fact he could not reasonably fulfil his instructions until he had satisfied himself through a medical report of her capacity, and thus in any event be some delay (iii) the fact that he would need to visit her in person after obtaining the medical report, so there would be some further delay" (para 77).

The judge agreed with the solicitor that the right course upon receiving the medical report was to visit the client in person. "He was entitled, as a family solicitor, to discuss the proposed changes to her will, the consequences, and to satisfy himself that that was she wanted. But the decision was hers" (para 79).

There were detailed arguments as to causation which are not relevant for present purposes, but the judge was satisfied that (a) it would have been clear that Ms Charlton had at the time the requisite mental capacity to make a will; and (b) that her instructions could have been fulfilled by the solicitor in a timely fashion. Substantial damages were therefore awarded the Claimant to reflect the sums paid by way of settlement of the claims subsequently brought against the will made by her for her mother and for her legal costs incurred in that settlement.

Comment: This case stands as a cautionary tale in a number of respects, but perhaps above all for its emphasis upon the fact that solicitors must be very astute to take prompt steps to inform themselves of all relevant information before taking any decision that on its face goes against the instructions given them by their clients, even where that decision is motived by proper concern for their client's well-being. As such, it should be read alongside the Law Society's recent Practice Note on financial abuse.