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cityguru, Solicitor
Category: Family Law
Satisfied Customers: 13323
Experience:  30 yrs experience
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4 years after giving instructions to prepare Wills a 76 year

Customer Question

4 years after giving instructions to prepare Wills a 76 year old Husband contacts the solicitor and tells them "he and his wife (same age) cannot remember if they had the Wills signed and Witnessed... do not try to contact my wife at home as she is now seriously ill - I will ring you back..."

The Husband doesn't phone back so the Solicitor calls him a few days later and the Wills are sent out with instructions for signing.

Does the solicitor have a duty to:

Ask more questions about wife's illness and whether she may have been recently hospitalised etc?

Contact the wife directly in order to confirm her instructions and testamentary intentions and warn her the Will wasn't signed 4 years ago?

Not to leave everything in the hands of the husband?
Submitted: 2 years ago.
Category: Family Law
Expert:  cityguru replied 2 years ago.
Thank yo for your question. That really depend upon whether the parties jointly instructed ht solicitor and if he had reasonable gourds for believing he could accept instructions from one of them on behalf of both.

Merely sending out prepared wills - if they had previously jointly instructed him - is not that serious although my view is that he ought really have sent each one under separate cover to the individual testator. Knowing the wife was ill should put the solicitor on notice that there may be an issue about there state of mind. You do not say if these were intended to be mutual wills which might make some difference but certainly there are questions raised.

The wife of course did not need to sign the will if she did not wish to but if she did and it is challenged the solicitor may be blameworthy for not checking up on her and making sure the husband was not putting undue influence on her to sign .

cityguru, Solicitor
Category: Family Law
Satisfied Customers: 13323
Experience: 30 yrs experience
cityguru and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

The Wills were not intended to be mutual.


The wife who was dying and been hospitalised twice during the previous month, she didn't sign the Will because she believed she'd already signed it.


The husband knew she hadn't but didn't reveal that to her - so she was confused and possibly thought her husband may have been trying to take advantage of her.


Should the solicitor have confirmed her testamentary intentions or her state of mind was ok just before she was asked to sign the Will by MOT?


Expert:  cityguru replied 2 years ago.
I don't believe a solicitor had a professional obligation either to make sure a client makes a will or to check their state of mind if asked to send a will out. It is certainly good practice and desirable to make enquiry.

Generally it is not in the husbands interest to have no will but it depends . What was the outcome ?
Customer: replied 2 years ago.

I'm thinking (hoping!) that the duty arises out of the knowledge that the Solicitor knows he could later be asked to provide answers to questions posed by a Larke v Nugus request.

Those questions would include "What was the perceived mental and physical health of the testator...”

If the Solicitor cannot answer that question he won't necessarily be judged to be negligent but…

The Solicitor knew there would be trouble if the Wife did not sign the later Will he had sent out for signing - as the Wife would be disinheriting her children and leaving her entire estate to her Husband under the earlier Will that the Solicitor had prepared many years earlier.

The Solicitor had not spoken to the Wife for nearly 4 years

The Solicitor was aware the Wife had become seriously ill since that time...

Was the seriously ill Wife meant to arrange witnesses without the assistance of the Solicitor – Esterhuizen v Allied Dunbar

Expert:  cityguru replied 2 years ago.
You are not clear about what the outcome was here or what your objective is. My impression is that the will was not executed by the Wife and in consequence the entire estate went to the husband.

I assume you are one of the children?

The first thing to say is that despite some of the cases you may have seen, the case law is very clear that a solicitor is not necessarily under a duty to get a client to make a will or to chase a client if they have not followed up. The duties are all about implementing instructions and ensuring that they are correctly carried out.

The husband apparently chased up after 4 years to see what had happened. The wife did not. So there were not express instructions at the time. Secondly the husband made it clear the solicitor was not to contact the wife.

It may be that the solicitor should have taken certain steps to ensure correct execution but he had no current instructions based upon what you say . If in fact the will had been executed and the wife was not well and to repeat your phrase - confused- it is unlikely the will could have been validly executed anyway if the solicitor had made due enquiry. If it was invalid then the estate would go on intestacy so depending on size it might go to the husband or to the husband and the children.

The real issue was the delay of 4 years. I do not think the solicitor can be held liable certainly not to the potential beneficiaries.

The other issue is proving loss. As I say if the will had been executed when the wife as ill then it may have been in invalid and of course there is no reason to suppose the Husband may not leave the entire estate to his children - or is there?

Customer: replied 2 years ago.

I think you're getting confused here.


The husband warned the Solicitor off contacting the Wife directly by phone but subsequently instructed them to send out his and her engrossed Wills for signing.


I wasn't after an outcome I was simply asking for an opinion:


Did the solicitor have a duty to do more in the original circumstances outlined.


You said no - the solicitor didn't have a duty.


I then questioned that with Larke v Nugus duties and case law relating to the failure of a Solicitor to assist his client in executing his Will.


The real issue, as I see it, is did the Solicitor have a duty to do more in 2011... I'm hoping they did but if you don't think they did then that's fair enough.


The reason I think that is the real issue is because if the Solicitor had asked about my mother's health they might have found out she was gravely ill and that therefore the Solicitor should have followed the "Golden Rule"... or failing that supervised the execution of the Will themselves etc.


I wasn't after quantification of loss or a discussion about causation issues either - because it may be it's "pure speculation" what my mother would have done if the Solicitor had supervised the execution himself or followed the Golden Rule and involved a medical practitioner.

Expert:  cityguru replied 2 years ago.
That is fine but I am trying to give you a full picture , it is often the case that specific questions are not ultimately the key ones.

The bottom line is that based upon White v Jones which was the one of the key cases, a solicitor is not under an obligation to chase a client to make a will.

If the solicitor has instructions to get a will executed then he/she is under a duty to make sure it is done properly but the Solicitor did not have such instructions. If - which is debatable - he could act on the husbands instructions then he would have to follow them. Whatever they might have been and that in itself must be speculative.
Customer: replied 2 years ago.

You cannot give me the full picture because you don't have all the information.


White v Jones was a case of delay but the actual case that sheds light on the question of whether a solicitor has a duty to chase a client to execute a draft that has been sent out was Atkins v Baker - a case that turned very much on the fact that Mr Webber (the deceased) was "crystal clear" as to the risks and consequences of him failing to execute the new Will.


Insisting that the Solicitor did not have instructions in this situation is odd - The solicitor sent out a letter with instructions for signing the engrossed Will - they obviously believed (as they were reasonably entitled to I think) that the Husband was acting as agent for his Wife when he requested the Solicitor to do this.


Having accepted those instructions the Solicitor knows that the future economic welfare of the intended beneficiaries are dependent upon his careful execution of the task.


Did the Solicitor execute the task with due care?


Should the Solicitor have done more given the circumstances I originally outlined?


Or were they entitled to pop the Wills in the post with instructions for signing and sit back and relax?


Expert:  cityguru replied 2 years ago.
Well in my analysis, if the husband had authority to act as agent then the solicitor would have to follow his instructions. I.e. not to contact the wife. It is not really possible to comment in great detail without knowing the content of the letter sent out by the solicitor or the dialogue that took place but it does seem at a late stage the solicitor did chase it up with the husband. My view is that he probably was not entitled to rely upon the husband particularly if the wife was ill and the solicitor had no evidence of the husbands authority to act. Not unless when originally instructed he was told that he could accept the husbands authority. He probably ought to have made further enquiry about the wife and her condition but from what you say by that stage it was probably too late to get the will executed anyway.

The real delay was following the original instructions and you really need to go back and look into that and whether at that stage the solicitor should ( or indeed did ) chase up execution of the wills.
Customer: replied 2 years ago.

Yes and because there is no note of the dialogue that took place between the Husband and the Solicitor it could be an expensive waste of time taking them to court to find out...


The Solicitor had plenty of time to enquire about the Wife's condition - she died 22 days after they'd sent out the engrossed Will for execution.


If the Solicitor had asked a few basic questions at the outset they would almost certainly not have just popped the Will in the post with instructions - The Wife was terminally ill, undergoing chemotherapy, taking a great deal of medication, unable to go out without assistance and a wheelchair and being regularly visited by doctors and nurses at home etc.

Expert:  cityguru replied 2 years ago.
You may well be right but the problem then is if the solicitor had asked more questions, would he have come to the conclusion that the wife was not capable of executing the will anyway? Certainly it does not sound as if she had ( recently at least) given clear instructions.

I think the solicitor ought to have asked more question of his client but as I have said in my view he ought not to have been accepting instructions from the husband. There are a lot of circumstances in which solicitor have to take great care in dealing between husband and wife and speaking personally I would not have accepted instructions form the husband but insisted on direct contact with the wife.

The issue you really have is -given that the wife had done nothing for 4 years - in establishing that the unexecuted will was really what she intended immediately prior to her death and the solicitor had failed to implement it .

Customer: replied 2 years ago.

I think if the solicitor had asked a few questions and spoken to the Wife directly he would have realised he owed her an increased duty of care and proceeded to follow the "Golden Rule" most Solicitors would follow in the case of an aged and seriously ill person...


The solicitor was the Husbands ex business solicitor and very well known to him.


The reason the Wife did nothing for 4 years was because she believed she'd already signed her Will. It may be that the Solicitor sent out the EPAs for safekeeping with a letter titled up "Your Wills" and that she stored those documents in her box file and became confused.


However, I don't think the delay is going to get me a result.


It's whether from receipt of the final instructions from MOT did the Solicitor do what he should have done in the circumstances.


Expert:  cityguru replied 2 years ago.
Sorry where did the EPA's come into it? Did the husband have an EPA for his wife? If so the solicitor would be entitled to rely on his instructions I would have thought.

I am pretty doubtful if a court would consider there is a general obligation on solicitors to chase after a client.

I have already said that I think the solicitor ought not to have just relied on the husband and there are clearly issues of potential conflict but the fact that the client was confused about what she had or had not signed can hardly be laid at the solicitors door.

On the face of it you are trying to hold the solicitor responsible for the fact that the wife did not realise she had not made a new will and that no new will was executed at the last minute when she was ill although your posts suggest that the husband may well have had some interest and influence.

There is not clear evidence that the solicitor had been given explicit instructions about the wifes wishes over the intervening 4 years and even if he had made further enquiry it is debatable if she would have been fit to execute a new will anyway.

If the amount involved is large enough it may be worth having a go but bear in mind the solicitor will be defended by hid professional indemnity insurers and you will need to fund a lengthy and possibly expensive action.

You will have gathered from my comments I do not think you have a strong case but I have no idea what is at stake here.

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