Will: Client did not read it
A judge has criticised a solicitor who failed to ensure that an elderly testator with Parkinson’s disease understood a change made to his instructions.
His Honour Judge Michael Berkley, sitting as a High Court judge, described Matthew Knight of The Waring Partnership in Hampshire as experienced, but that did not “excuse his omission”.
Mark Briant, who died in 2022 and was 92 when the new will was made earlier that year, “did not know and approve of the contents of the 2022 will because he had not had it explained to him sufficiently clearly” what a change proposed by Mr Knight meant.
The change from an absolute gift to a life interest trust meant that his wife, Rosemary, would not have access to the capital fund without the agreement of Mark’s daughter.
The High Court heard that Mark and Rosemary cohabited from 1994 at the latest, before marrying in 2011. It was a second marriage for both and they each had three children.
They made mirror wills in 2012, although these were “drafted by a family friend and have a number of would-be questions of their construction”, the judge observed.
Mark was diagnosed with Parkinson’s disease and his physical health began deteriorating in 2017. Rosemary was diagnosed with dementia in May 2022.
Mark moved to Hampshire in March 2022 to live with his daughter Vanessa and son-in-law Ian, while “a care package was sought to allow him to return home” to Dorset. Mark and Rosemary had been living in Bridport, next door to James, one of her children.
Mark died before he could move back but had executed the new will unbeknownst to Rosemary or James.
This left a life interest in 50% of the estate to Rosemary but, subject to that, absolutely to Vanessa. The other 50% was divided up between Vanessa and her children and grandchildren.
James acted as litigation friend in bringing proceedings claiming that the 2022 will was invalid because Mark “did not know and approve its contents” or alternatively that it was procured by undue influence. There was no allegation that he did not have capacity to make the will.
Rosemary made a separate claim under the Inheritance (Provision for Family and Dependants) Act 1975, claiming that the will failed to make reasonable financial provision for her.
Vanessa and Ian were the defendants, in their capacities as executors of Mark’s estate, which was made up of nearly £250,000 in cash.
The will was prepared by Mr Knight on Mark’s instructions, “and although it was not read over to Mark by the solicitor before it was signed, it was duly executed”.
Mr Knight accepted that Mark had said he wanted to gift his wife 50% of his estate and the solicitor then suggested putting it into a life interest trust to prevent the local authority having access to it in case she needed to go into a care home.
“Mr Knight was asked whether it was satisfactory from Rosemary’s and Mark’s perspective that Rosemary would have to go and ask Vanessa for money and that was entirely within her gift. Mr Knight said that he relied on Vanessa’s duty as trustee to act in the best interests of the beneficiary, but accepted that there was a strong conflict of interest.
“He accepted there was no direct power in the will trust to encroach on the capital and that it created no interest for Rosemary in any of the capital; that Rosemary was entitled to income only and that Rosemary in effect needed Vanessa to make her a gift of any capital she sought which would come directly out of Vanessa’s inheritance.”
Mr Knight was asked whether he had explained to Mark that the ultimate beneficiary was going to be Vanessa, and he pointed to the letter enclosing the draft will.
“But he accepted that there was nothing in the attendance note or the manuscript attendance note to suggest he had explained this,” said HHJ Berkley.
“It was suggested to Mr Knight that he had included provisions in the will that had not been in his instructions, and then failed to flag up the fact that he had done so, to which he replied ‘OK’.”
The judge found that Mark initially wished to reduce his gift to Rosemary to 50% of his estate – out of gratitude for the care provided by Vanessa and Ian – but went on: “However, I am not satisfied that he knew and approved of the effect of the life interest trust that Mr Knight suggested.”
Given his client’s frailty and inexperience, Mr Knight needed “to carefully explain to Mark the implications of this fundamental change in the gift and to make sure that that explanation was noted.
“From the evidence that I have seen and read he simply did not do so, and from what he did explain, Mark would have been misled.
“For the avoidance of doubt, I am not suggesting for a moment that Mr Knight was trying to hide those implications deliberately, but he seems either to have assumed a level of knowledge and experience that Mark did not have, or did not think through the implications of his suggested alteration to the gift.
“After having given a careful explanation at the first meeting, it was also necessary in the follow-up advice letter to (a) flag up that there had been an important departure from the Mark’s initial instructions and (b) explain the nature and effect of that departure including in particular how it was going to affect the donee of the gift.”
The judge struck out the words in the 2022 will creating the life interest trust, rendering the 50% gift to Rosemary absolute.
Having that done that, Rosemary had achieved “all that she could have achieved” in a claim under the 1975 Act, so there was no separate award under that.
He also dismissed the claim of undue influence.
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