Quizzes & Puzzles29 mins ago
Professional Negligence
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. ?
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. ?
Answers
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.
17:17 Sat 06th Aug 2011
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.
i can see no negligence at all.
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?
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.
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.
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!
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!
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.
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.
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 .
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 .
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".
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".
