Judge criticises solicitor over ‘negligent’ Will

If ever proof were needed about why it is imperative to get the very best help and advice when drafting a Will, then the recent case of Herring & Anor v Shorts Financial Services should provide a salutary lesson. Even if you do the right thing, get professional advice and make a Will to protect the interests of your beneficiaries, there is still no guarantee that your intentions and wishes will be fully honoured after your death. All that’s needed to undermine your best intentions is negligence and a lack of attention to detail. The lesson for all of us from this is if you really want to safeguard your financial security now and in the future, make sure you get the best advice available, and always check the small print. The devil’s invariably in the detail.

In Herring & Anor v Shorts Financial Services, Judge John Behrens ruled that a solicitor was negligent when drafting a will for his client, leaving two of the beneficiaries £62,500 short of what was intended for them. The case centred on a claim by Tim Herring and Claire Hartley, two relatives of Mrs Shemwell, after they did not receive the full £200,000 intended for each of them after she died in 2012.

In an effort to recover the shortfall, they issued proceedings against Shemwell’s financial adviser Robert Sully, a senior adviser at Shorts Financial Services, and against the solicitor who drafted her will, Rob Woodhead, head of wills and probate at Chesterfield firm BRM Solicitors. The claim against the solicitor was settled following mediation in December 2015.

The remaining dispute centred on whether Mr Sully adequately explained that a loan trust he had advised Mrs Shemwell to set up, in order to mitigate the inheritance tax payable on her death, would not automatically transfer to the two claimants despite it naming them as the sole discretionary beneficiaries. Instead the loan trust, into which she had invested £125,000, passed on to her estate when she died. This meant Mr Herring and Ms Hartley were both left £62,500 short of the full amount intended for them.

Sitting in the County Court, Leeds, Judge John Behrens ruled that the financial adviser did not have a duty of care to the claimants, as he had not been involved in the will-making process. But he said it was ‘difficult to resist the conclusion’ that the solicitor had breached his duty of care to both the claimants and his client.

According to the judgement, Mr Woodhead had not asked Mr Sully about the trusts before drafting the will and instead relied on a short conversation and information contained in an aide-memoire which Sully had prepared for his own benefit for a meeting. The upshot of this ‘oversight’ was that the Will included legacies of only £54,000 for each of the claimants on the assumption that they would also receive £146,000 each from the trusts.

In judgement Judge Behrens said:

“In my view [Woodhead] should have made sufficient enquiries to satisfy himself that the relevant trust monies would in fact pass on to the claimants on Mrs Shemwell’s death.”

“In my view it was negligent to draft the will based solely on the material in the aide-memoire and the short conversation. This is not a case where the claimants have no claim against anyone.”

The judge ruled that the case against the financial adviser be dismissed.

Commenting on the judgment, Mr Woodhead said:

“We were not represented at the trial as we resolved the claimants’ issues with us some time ago. Whilst I do not agree with the judge’s comments about this unfortunate set of circumstances, as we were not a party to the judgment and no judgment has been made against us, I can only note them.”

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