Following my first seat with the Litigation, Commercial and Personal Injury Department, I moved to the hectic Property Department in January 2019. I have found this area incredibly interesting, particularly Commercial Property, and important to my continual...
A solicitor's primary duty when drafting a will is to follow faithfully their client's instructions after giving accurate and level-headed advice. In a professional negligence case triggered by the early death of a business tycoon's wife, the High Court ruled that that is exactly what a law firm did. The case does, however, make the point strongly that wills should always be kept under review to ensure they are still appropriate if circumstances change.
The woman was ten years younger than her husband and, until she was diagnosed with cancer, had confidently expected to survive him. Their assets included two homes, together valued at more than £6 million. They owned the properties as joint tenants and, when she died before him, he became sole owner of both of them by survivorship.
Suffering from dementia, he had moved into a nursing home some years before his wife's death and lacked the mental capacity to change his will. The final will that he was able to make, executed 14 years before she died, bequeathed the residue of his estate to a charity with whom the couple had subsequently fallen out. The end result was that the charity stood to inherit both properties on his death.
In those circumstances, the executors of the woman's estate launched proceedings against the firm that had drafted her will. It was argued that the firm should have advised her to sever the joint tenancies in respect of both properties, so that she and her husband owned them as 'tenants in common'. That would have resulted in her half share in both of them forming part of her estate and passing to her chosen beneficiaries – which did not include the charity – rather than to her husband.
In rejecting the executors' claim, however, the Court found that the firm had taken all due care to ensure that effect was given to her intentions. She had been carefully advised on the pros and cons of severing the tenancies and had expressed her unwillingness to do so. It was in part her continued devotion to her sick husband that had caused her to put off the issue and refrain from taking that course.