Lorraine Studholm Feltham v Freer Bouskell
| Jurisdiction | England & Wales |
| Judge | Mr Charles Hollander |
| Judgment Date | 15 July 2013 |
| Neutral Citation | [2013] EWHC 1952 (Ch) |
| Docket Number | Case No: HC11CO0752 |
| Court | Chancery Division |
| Date | 15 July 2013 |
[2013] EWHC 1952 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Charles Hollander QC (SITTING AS A DEPUTY JUDGE)
Case No: HC11CO0752
Teresa Rosen Peacocke (instructed by Forest Edge) for the Claimant
Justin Fenwick QC and Hamid Khanbhai (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 4–7, 10 and 19 June 2013
Mr Charles Hollander QC (SITTING AS A DEPUTY JUDGE):
This is a solicitors' negligence action brought by Lorraine Feltham against Freer Bouskell, solicitors, under the principle in White v Jones [1995] 2 AC 207. Ms Feltham claims that Freer Bouskell were instructed to prepare and execute a new will for her step-grandmother Ms Charlton under which she would have benefited significantly. She claims Freer Bouskell negligently failed to do so, with the consequence that Ms Charlton had to ask Ms Feltham herself to make a new will for her. That will was challenged by two persons who would have benefited from the previous will and she had to settle the challenge by making additional payments to the two individuals in return for them withdrawing their challenge, and suffered other related loss. Ms Feltham's case is that if Freer Bouskell had prepared the new will, as they had been instructed to do, it was most unlikely that it would have been challenged.
The facts
(1) Introduction
Hazel Charlton was, on all accounts, a feisty old lady with a strong personality. In 2006 she had been previously married twice and had spent the last 20 years with her partner John Fishbein. Ms Charlton owned a house in Leicester but they had spent much of their old age on round the world cruises. By about 2002 this had become too much for them and they lived at Mr Fishbein's house 10 White Horses at Barton on Sea.
Lorraine Feltham was Ms Charlton's step-granddaughter, her mother being the daughter of Ms Charlton's second husband. During the years of the round the world cruises, Ms Feltham saw less of Ms Charlton, but Ms Charlton become fond of Ms Feltham's son Alec (born 1993) and was very supportive during Ms Feltham's divorce in 2002. Ms Feltham lived in Fordingbridge and once the cruises came to an end saw Ms Charlton more regularly.
Ms Charlton had made wills in the past. Since at least 1990 Freer Bouskell, a firm in Leicester, had acted for her in relation to her wills. Her most recent wills had been in 1992, 1997 and 1998 with a Codicil in 2003. Ms Feltham was not a beneficiary in any of these wills.
Ms Charlton's original connection with Freer Bouskell was with Michael Charman and his son David Michael Charman. She was introduced to Mr Peter Ward in June 1997 when she instructed him to prepare an enduring power of attorney for her. He then assisted her with various other matters and prepared her 1998 will and 2003 Codicil.
Apart from Mr Fishbein, the beneficiaries in the 1998 Will were Margaret Atkinson, who was Ms Charlton's cousin (aged 83 in 2006), Dr SS Bhangoo, who had been her GP a generation back but who had become a friend thereafter, with legacies to Mr and Mrs Hartwell, friends who held the keys to Ms Charlton's Leicester house, and the executors were Mr Ward, David Michael Charman and Mr Tony Gommersall. Mr Gommersall died in 2003 and was replaced as executor under the 2003 Codicil by Nigel Ball, an accountant who handled Ms Charlton's financial affairs.
On 13 January 2006 Ms Feltham was told by Ms Charlton that Mr Fishbein had died. Ms Charlton was almost 90 and it was not feasible for her to live alone. Ms Feltham suggested she go into a nursing home and proposed Allenbrook, a nursing home down the road from her in Fordingbridge.
The events of the next three months are crucial and will need setting out in some detail. Before doing so it is convenient to set out the terms of the 1998 Will, made on 14 May 1998:
I ELIZABETH HAZEL CHARLTON of 12 Cecilia Road in the City of Leicester HEREBY REVOKE all former Wills and testamentary dispositions made by me AND DECLARE this to be my last Will
1. I DESIRE that my body or any part thereof may be used for therapeutic purposes including corneal grafting and organ transplantation or for the purposes of medical education and research in accordance with the Human Tissue Act 1961 and in due course the Institution receiving it shall have it cremated.
2.
(a) I APPOINT Peter Lipson Ward and David Michael Charman both of 10 New Street in the City of Leicester Solicitors and Tony Gommersall of The Old Rectory Harpole in the County of Northamptonshire to be the Executors and Trustees of this my Will
(b) IN THIS WILL and any Codicil to it the expression "my Trustees" means its trustees for the time being or (where the context requires) my personal representatives for the time being
(c) ANY powers given to the Trustees of this my Will (by the Will or any Codicil to it or by the general law) may be exercised by my Trustees before the administration of my estate is complete and even before a Grant of Representation has been obtained
3. I GIVE AND BEQUEATH the following legacies absolutely and free of all duties and taxes payable upon or by reason of my death:-
(a) TO each of my friends Philip Hartwell and Frances Hartwell both of 23 Central Avenue Leicester for their help and kindness to me the sum of Ten thousand pounds
(b) TO John Fishbein of 10 White Horses Marine Drive Barton-on-Sea Hampshire the sum of Fifty thousand pounds
4. I DIRECT my Trustees to arrange for my jewellery to be valued for Probate purposes by Lumbers Limited 31 Market Street Leicester following which it shall be sold on the open market through Lumbers Limited
5. I GIVE all the residue of my estate whatsoever and wheresoever situate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have at my death any general power of appointment to my trustees UPON TRUST to sell call in and convert into money such parts as do not consist of money but with full power to postpone doing so for as long as they see fit without being liable for loss (and such estate and property and the property which currently represents it is referred to in this my Will as "my Residuary Estate")
6. MY TRUSTEES shall hold my Residuary Estate as to both capital and income UPON TRUST to divide it or to treat it as being divided into three shares of equal value and to hold them on the following trusts and subject to the following provisions:
(a) MY TRUSTEES shall hold those shares UPON TRUST absolutely:
(i) as to one of them for my Cousin Mrs Margaret Brenda Atkinson of 22 Hunters Close Verwood Dorset BH31 7DJ
(ii) as to one of them for Dr. Surinder Singh Bhangoo of 84 Stoughton Road Oadby Leicester
(iii) as to one of them for the said John Fishbein PROVIDED THAT he is still my companion at the time of my death
(b) PROVIDED THAT if at any time the trusts declared by (a) above in respect of any share of my Residuary Estate should fail THEN from the time of failure that share (and any part or parts of any share which may already have accrued to it under this provision) shall accrue to the other share or shares (and equally if more than one) the trusts of which have not at that time failed to be held on the trusts and with and subject to the powers and provisions affecting such other share or shares."
As I have indicated, Mr Ball replaced Mr Gommersall as executor under the 2003 Codicil.
(2) Events from 16 January 2006
Ms Feltham telephoned and spoke to Mr Ward on Monday 16 January when he returned the call. Mr Ward did not at the time know her, and she introduced herself and explained her relationship to Ms Charlton. Mr Ward noted that "she sounds very efficient." She explained that Mr Fishbein had passed away, that she found Ms Charlton in a bad way and had put her in a nursing home, and discussed a number of details. Mr Ward's attendance note states:
"All records transferred to Fordingbridge. Short term memory loss — category 2."
"HC [Hazel Charlton] had dementia-covered up by John [Fishbein]."
Although Ms Feltham did not recall making the first comment and denied that she had made the second, she must have done so and I so find. The records were not transferred until March so the first comment must mean "all records [to be] transferred." Mr Ward refreshed his memory from the original of his attendance note and correctly pointed out that the use of a single pen and the way the note is laid out makes it highly unlikely that these comments were added later. Moreover, at this time it is very hard to see who else would have provided this information to him. And as appears from an internal note only half an hour after the conversation with Ms Feltham, and apparently in the light of matters discussed during the call with Ms Feltham, Mr Ward asked a colleague to do some research on whether Ms Charlton could act as executor of Mr Fishbein's will stating
"She has dementia".
On 17 January Mr Ward spoke to Mrs Smethurst, who was Mr Fishbein's sister. The note records:
"She has been told that HC is suffering from dementia."
Another issue for Mr Ward at this time was the Enduring Power of Attorney which Mrs Charlton had given in favour of him and David Michael Charman on 1 July 1997. This was subject to the following restriction and condition:
"My Attorneys must not act on my behalf until they have reason to believe that I am becoming mentally incapable."
On 18 January Mr Ward wrote to Mrs Charlton, with whom he had not yet had direct contact since Mr Fishbein's death, in the following terms:
"I was very sorry to hear that John Fishbein has recently died, and I send you my sincere condolences. I also understand that you have moved to Allenbrook Nursing Home and I hope that...
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