How to manage an elderly person urgent case
A Leicester firm of solicitors were found guilty of negligence in a set of circumstances most of us would and the legal community have considered to have been reasonable on their part. Nevertheless there has been a shift in how a case should be managed in terms of pro-activity and something all those practising in estate planning need to bear in mind.
The facts of the case are roughly that the solicitor had a long-standing elderly client, the judge sitting had described as being feisty. The step granddaughter, Lorraine – who’s role in the case will be described later – was not a beneficiary to any of the Wills, which the client had made over the years.
Following the death of the client’s partner, who was one of the original beneficiaries to the final Will along with crucially two others, Lorraine the step granddaughter suggested to the client that she enter a care home, which she did immediately. Lorraine then contacted the solicitor of the law firm to update him on recent events. The solicitor, it emerged, had doubts firstly as to the client’s capacity and also to Lorraine’s motives. During a later phone call between the client and the solicitor she stated that ‘Lorraine had been kind to her and so she wanted to leave the bulk of the estate to her’. The solicitor rightly stated as he was concerned as to her capacity, he would need a medical opinion before proceeding: especially as Lorraine had typed out the client’s instructions and provided the name of the client’s doctor. By now though, the client had contacted the solicitor herself and expressed concerns over Lorraine’s motives.
The solicitor instructed the doctor to provide an appropriate medical report, so that he could accurately determine whether the client had capacity to give new instructions. In the event that report did not arrive at the solicitors until much later and the client in the meantime, frustrated at the delay, instructed Lorraine to buy a DIY Will and wrote the Will leaving legacies to the original two others but the substantial legacy to Lorraine.
An action was brought by the other two beneficiaries, who were due to inherit all if the PREVIOUS Will could be held valid on account that the new DIY Will had not been given effect on account of the testators mental capacity. In the event, the doctor’s report did state she had capacity, and that the DIY Will was therefore valid.
Onto the important point – the solicitor was heavily criticised for not proactively chasing the doctor for the medical report, which ultimately resulted in the DIY Will being correctly attested in the face of the Will he would have drafted, and critically checked there was no undue influence from Lorraine – the chances are that that Will would have been very different from the DIY Will ultimately signed, and the original two beneficiaries would have inherited the estate instead of Lorraine.
If you have any concerns regarding your estate, as a Will writer in Bexhill-on-Sea, I’ll be happy to offer you a FREE CONSULTATION NO OBLIGATION in your home, if you live in Sussex & Kent.
This message was added on Tuesday 3rd June 2014