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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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What are the legal requirement of a solicitor drawing up a

Resolved Question:

What are the legal requirement of a solicitor drawing up a change of will. My daughter has lost out on a property inheritance because her Nan failed to sign a drafted change of will but I maintain the solicitor has a duty to make sure a change is followed up and signed or cancelled. The firm in question say the file has since been closed. The whole procedure is very questionable and are there any legal requirements by the Law Society for this.I know for a fact that her Nan wanted these changes and I believe something underhand possibly took place and how do I pursue this.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask from your knowledge of the facts why the will was not signed. Specifically do you know:
1) Was the firm formally instructed to draft a codicil or new will? I assume yes from what you say.
2) If so did they actually draft a codicil or new will for your daughters grandmother to approve?
3) If so was it sent to her for approval?
4) If so did she approve it and ask for an engrossment to sign?
5) If she failed to respond to the firm did the firm send any chase ups?
6) Finally (apologies so many questions) do you know the approximate value of the property in question?

Customer:

. 1. New Will. 2.New Will.3. I assume so but cannot be sure. 4. She certainly approved it and told members of the family as beneficiaries. 5. That is my point I do not believe they did, but say they kept the draft which we have a copy but closed the file, they had previously made many wills for her, which makes it even more strange. 6. The property has since been sold for £235,000:00.

Joshua :

Thanks. Just reviewing your replies...

Joshua :

Thanks for the above. There is case law on the subject.

Joshua :

The question of the duty of a firm to its client in these circumstances was considered in Atkins v Dunn & Baker in 2004 which is helpful though frustratingly the court ducked providing as much clarity as it could so there remain some unanswered questions.

Joshua :

In the above case a draft will was sent to a client for approval prior to preparing an engrossment to sign. In this case the client failed to respond and the client subsequently died without signing the will. One of the beneficiaries who failed to inherit sued claiming the firm was negligent in not procuing that the will was signed.

Joshua :

The beneficiary failed and the matter went to the court of appeal. The Court of Appeal held in these circumstances that the firm having sent the draft for approval had discharged its obligations and that the ball was then in the client’s court. They held that the failure by the firm to send a reminder did not constitute falling below the standard to be expected of a competent solicitor as to be negligence. However, the frustrating aspect of the case in particular was that the Court of Appeal accepted that notwithstanding the above, that there will often be situations where there is a duty to send a reminder to the client. However, the circumstances in which such a duty would arise were not spelt out by the court.

Joshua :

Therefore the above decision leaves the door potentially very much open for a disappointed beneficiary to make a claim against a firm for negligence in failing to procure signature to a will but there is a lack of certainty in the case law as to precisely on what terms that negligence would be decided. The first step would be to obtain a copy of the will file by making a Larke v Nugus request which is a request for the will file and for the response to pertinent questions you have regarding its preparation.

Joshua :

From a review of the will file you will be able to better determine the actions and reasonableness thereof of the solicitor and from there decide whether there is a basis for a claim. The court did say in the above case that it would be advisable for a firm to send a reminder letter if nothing is heard in say 7 days but it did not say tha a failure to do so would constitute negligence.

Joshua :

generally, the line from the above decision would seem to be that a firm can in large part discharge its obligations to its client by sending a draft of the new will to its client within a reasonable period of time following the instruction and that if it is then the client that fails to respond, the firm will not automatically be negligent in failing to follow this up. However, if the client does respond and the firm subsequently lets the matter slip, the position is likely to be the reverse. In addition, the line from the above case would appear to be that there may be special circumstances where failure by the firm to follow up with an unresponsive client could be negligence though, as above, unhelpfully the court failed to outline what those special circumstances might be. Much is therefore likely to be how reasonable in all the circumstances the firm's actions were and this can only initially be determined from a full review of the file

Joshua :

if you find from a review of the file that the firm failed to send a draft following the initial instruction or that your daughter's grandmother did respond and the firm took the matter no further, then there would seem to be grounds for a claim. If, from a review of the file, it appears that this was a case where your daughter's grandmother did not respond to firm correspondence, and the firm failed to chase her up, they would not appear to be an automatic ground for a claim and in the circumstances, it would appear to be necessary for you to show special circumstances existed as to why the firm should have followed up with their client (as above, it is not spelled out what these special circumstances should be but in general the more unreasonable the firm's actions were in the circumstances, the more likely they are to be "special circumstances"

Joshua :

If your daughter believes she has the basis of the claim in view of the criteria laid down by the above decision, she would need to instruct ideally a STEP qualified solicitor to represent her. providing there are grounds for a claim, there is in principle the opportunity for your daughter to seek costs for representation against the estate in respect of her claim though such a right is not automatic.

Joshua :

http://www.step.org/online-directory

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

Many thanks, ***** ***** in question say the file was closed and have no answer to the question you refer to,. The Larke v Negus request we are aware of . I am sure it was signed but the signed copy was conveniently lost and feel there is a big problem trying to get the justice my daughter deserves. Her no win no fee solicitor has been very poor in dealing with her claim but did ask the question of who attended the meeting to change the will, I feel it was her nan on her own.

Joshua :

If your suspicions are correct and the will was signed and has been lost by the solicitor, and of course this is a very different animal and those circumstances would amount to clear negligence on the part of the firm. Everything must begin a course with your having access to the complete will file because much will turn on the contents of that file

Joshua :

if your suspicions are correct, it would follow that the firm would have billed for the will. if you have not already done so, it would be worth asking for a copy of the accounts client ledger so you can investigate any billing and if there is such billing shown on the ledger, ask for a copy of the bill so you can read the narrative. This could be very revealing.

Joshua :

I'm sorry that you feel a solicitor is not being terribly effective. I've course make no comment other than generally in this respect of my experience is that solicitors who do not specialise either exclusively or fairly exclusively in succession claims, can find themselves rather out of their depth a succession claims are quite different in character to normal contractual and commercial litigation - hence my recommendation for a STEP qualified lawyer ideally.

Joshua :

However once you have access to the will file (and billing ledger?) you should have a better idea on how and if to proceed further. If you have access to your daughters grandmother's personall possessions and or bank records it may be worth examining them for any pertinent correspondence or evidence of payment to the firm which again, could tease out further relevant circumstances or facts.

Joshua :

Have I been able to help you with all your questions on the above for the present?

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