This means that, in certain circumstances, beneficiaries who have not received what the deceased intended may well have a legal claim against the adviser who prepared the Will.

A recent case [Herring and Hartley v Shorts Financial Services LLP] has highlighted how this principle can operate.

Facts of the case

  • Mrs Shemwell, who had assets worth about £2 million, had done some estate planning with her financial adviser which involved creating some Discretionary Trusts for her niece and nephew.
  • Mrs Shemwell then instructed her solicitor to make a new Will for her, ensuring that her niece and nephew would each receive a total of £200,000.
  • At a meeting between Mrs Shemwell and her solicitor, Mr Sully, her financial adviser attended briefly, giving an overview of her finances but without going into detail about the trusts that had been set up. Mr Sully left before there were any discussions about the Will.
  • Mrs Shemwell died shortly after making her Will. It then became apparent that one of the trusts was not as valuable as thought because Mrs Shemwell had only lent funds to the trust and not made outright gifts.
  • The lawyer had not clarified details of the trusts with Mrs Shemwell and was found to be negligent for not doing so.
  • In the circumstances Mr Sully, the financial adviser, was found not liable because he had not been part of the discussions about the Will, nor had he been asked for details about the trusts.

Moral of the story

It will be important for the person preparing the Will to make sure that they have full details about the client’s affairs and thoroughly check the information that they are given with the financial adviser, accountant and any other professional assisting the client.

Where the client owns property, it will be prudent to obtain copies of the deeds to be clear as to how it is owned. In an earlier case [Carr-Glynn v Frearsons] the client owned property jointly with someone else which passed automatically on her death to the surviving joint owner. The solicitor did not check to make sure that the client’s share would pass under her Will as the client wished.

Although Mr Sully (the financial adviser) was not found to have been negligent, he could have saved himself considerable time and expense if he had given clear details to the solicitor which would, hopefully, have avoided the problems altogether.

For more information

Please contact Alex Elphinston

 

Contract management pitfalls – payment
Contract management pitfalls – payment

In the second part of our series on contract management pitfalls, we look at the risks and opportunities presented by payment mechanisms in construction contracts.