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What's the chance of that?

Feltham v Freer Bouskell [2013] EWHC 1952

When Mr Ward received instructions from Ms Charlton, a longstanding elderly client with short term-memory loss who had at one time virtually resided on the QE2, that she wished to change her will and leave the bulk of her fortune to her step-granddaughter he did what a reasonable solicitor might do and asked a doctor to assess her testamentary capacity. When that doctor failed to carry out those instructions Mr Ward, concerned that the step-granddaughter was taking advantage of his vulnerable client, did nothing more.

Shortly before her death, frustrated at Mr Ward’s inactivity, Ms Charlton, who the judge found was a “feisty old lady with a strong personality”, executed a homemade will to give effect to her wishes.  After Ms Charlton’s death the new will was challenged and, following a mediation, the estate was some £650,000 smaller.

The step-granddaughter sued Mr Ward’s firm for negligence on the principles laid down in White v Jones. The judge found that Mr Ward had breached that duty of care. The question the judge then had was whether the assessment of how Ms Charlton would have acted if Mr Ward had complied with his duties should be carried out on the balance of probabilities or on the loss of a chance basis. Following Allied Maples, the judge decided that the loss of a chance basis applied to White v Jones cases. But this answer was academic as after the evidence the judge had no doubt about how the resolute Ms Charlton would have acted and saw no reason to apply any percentage reduction.

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