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?
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
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.
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?
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.
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.