Bermuda: Failure To Act Promptly Can Be Costly For Lawyers

Last Updated: 29 April 2014
Article by Sarita Ebbin

Most Read Contributor in Bermuda, October 2019

A recent court case in the United Kingdom provides a cautionary tale for lawyers regarding the need to act quickly upon the receipt of instructions from elderly or ill clients in order to avoid claims of negligence.

In Feltham v Bouskell, the testatrix was a 'feisty' elderly woman with substantial wealth. She had a long standing relationship with her law firm as they had previously drafted wills for her, most recently in 1992, 1997, and 1998 with a codicil (the document that amends a previous will) in 2003. The 1998 will left the residue of the testatrix's estate to be divided among three beneficiaries, a cousin, a friend and her long-time partner.

In 2002, the testatrix moved in with her partner, whose home was close to the home of the testatrix's step-granddaughter.

As a result of the move, the testatrix saw more of her step-granddaughter and her step-great grandson, of whom the testatrix became very fond. Upon the death of the testatrix's partner on 13 January 2006, the testatrix's step-granddaughter suggested that the testatrix, now nearly 90 years old, move into a nursing home as she was unable to live alone.

On 16 January, the step-granddaughter telephoned the lawyer who had prepared the 1998 will to inform him of the testatrix's move to a nursing home and the death of her partner.

On 24 January, the step-granddaughter sent to the lawyer a copy of the testatrix's instructions for the drafting of a new will.

Subsequent to the call with the step-granddaughter, a series of events occurred that caused the lawyer to doubt the testatrix's mental capacity and the step-granddaughter's intentions. As a result, the lawyer advised the step-granddaughter that he would need a medical opinion before he could amend the testatrix's will.

On January 26, the testatrix's doctor was instructed by the lawyer to provide a medical opinion. The doctor attended to the testatrix on 3 February and wrote his report testifying to the testatrix's sound mental capacity on 27 February. The report was received by the lawyer on 2 March.

Between 26 January and 2 March, the step-granddaughter followed up with the lawyer on numerous occasions for status updates on the doctor's report, to which the lawyer responded that he was awaiting it.

On 2 March, the lawyer received word that the testatrix had broken her hip and required surgery. On 13 March, frustrated that her will had yet to be updated and back at the nursing home, she instructed the step-granddaughter to prepare a new will for her.

After reviewing and amending several drafts, the new will was executed in the presence of two witnesses on 24 March. The testatrix passed away on 1 April. The lawyer was unaware that the testatrix had created a new will.

Upon receiving news of the testatrix's death and being sent a copy of the 24 March will, the lawyer sent the 24 March will, along with the 1998 will and 2003 codicil, to the remaining beneficiaries of the 1998 will.

He suggested that they retain legal counsel to challenge the 24 March will. The beneficiaries accepted the lawyer's suggestion and challenged it on the basis that the testatrix did not have mental capacity. The claims were settled in mediation with the step-granddaughter paying £325,000 to each of the beneficiaries.

The step-granddaughter brought a claim of negligence against the lawyer. She argued that the lawyer was negligent in failing to prepare a new will for the testatrix and that had the lawyer prepared the new will as instructed, the new will would likely not have been challenged.

The court held that the lawyer owed the step-granddaughter a duty of care as an intended beneficiary of the proposed will and therefore she could bring a claim of negligence.

In addition, while the courts accepted that it was appropriate to question the testatrix's capacity by taking on the responsibility of instructing the doctor, by doing so the lawyer took on the responsibility of satisfying himself as to capacity.

It was held that the lawyer was negligent in that he failed to deal with his instructions from the testatrix, and failed to chase the doctor when he did not receive a report on the testatrix's mental capacity promptly.

In this case, undue delay proved to be very costly.

While Bermuda courts are not bound to follow the judgment, they are likely to treat it as persuasive and it is likely that based on the same (or similar) facts, the Bermuda courts would adopt the same approach.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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