I act for executors who, when the testatrix was alive were her attorneys and used the LPA to sell her house. They were aware the will contained a specific gift of her house. Now that she is dead the gift adeems. We drafted the will, LPA and acted in the sale. We did not advise them that had they applied to the Court of Protection under schedule 8 paragraph 2 for an order for sale the gift could have been saved.
My specific question relates to the conveyancing. When conveyancers act for attorneys do they have a duty to advise attorneys to look at the will and apply to the Court to save a gift of property. Where this doesn’t happen is the conveyancer negligent?
This posting raises an interesting question – is it the firm that would be liable if any negligence was alleged, or the individual fee earners?
In many instances, knowledge is ascribed to the organisation rather than individuals.
If the record keeping systems of the firm in question were sufficiently comprehensive that the conveyancer would have known that the firm had acted for the client in other matters, a failure to have checked could give rise to questions of competence.
Whilst I would have anticipated the conveyancer should have asked the question, I am not sure that would have been a duty, rather than the application of best practice.
Whatever the duties the attorneys may have to the beneficiaries of the
existing will they must be heavily qualified by the power the attorneys
have to apply for a statutory will. The attorneys can only have a duty
to apply to the Court of Protection for an order for sale to protect the
interests of the beneficiary of a specific legacy of the property which
is to be sold if the terms of the legacy are still appropriate in the
changed circumstances. I think that is unlikely to be the case in
practice and, even if the attorneys think it is, an application for a
statutory will is still likely to be a better course of action to deal
with the ademption problem than an application for an order for sale.
I say this because this scenario is most likely to arise in practice
where the testatrix is not purchasing a replacement property (a
professionally drawn will using standard precedents will almost
certainly deal with a replacement property) and, in particular, it will
occur where the property is being sold because the testatrix is moving
into residential accomodation. This is a major change in circumstances
where a testatrix with capacity ought to be reviewing her will and
anyone advising her would probably, as a starting point, be advising
against large specific or pecuniary legacies but recommending instead
that the residue be divided proportionally so that, whenever death
occurs and whatever the value of the estate might be after the costs of
accomodation had been met, everybody loses out to the same extent. If
the testatrix has lost capacity then a similar approach to a statutory
will would seem appropriate.
Of course, this still raises the question of what duties the attorneys
and their advisers have with regard to the making of a statutory will in
these circumstances, but possibly this does raise slightly different
issues. For example; (a) the attorneys are not the only ones who can
apply for a statutory will, the beneficiary of the specific legacy could
too, for example (but may not know the terms of the existing will); (b)
it is less obvious that the making of a statutory will falls within the
scope of the conveyancers’ instructions than applying for an order for
sale. But I am sure there are other issues.