The will of a German prisoner of war took centre stage in a complex professional negligence claim.  The claimant, Mrs Osbourne, said her law firm Follett Stock had been negligent for failing to advise her to bring a professional negligence claim against another law firm CT.  Her claim failed as it was found to be outside the six-year limitation period. 

The case involved the disputed will of a former German prisoner of war Mr Roth.  He had left a fixed sum to his estranged daughter Mrs Benakovic and the balance of his estate to Mrs Osbourne, who was the niece of a women with whom Mr Roth had had a long relationship.

Unfortunately Mr Roth’s will had been witnessed by Mrs Osbourne’s husband, which meant that it failed, leaving Mrs Benakovic entitled to the whole estate.

In March 1997 Mrs Osbourne and Mrs Benakovic reached an agreement with the assistance of a solicitor from CT, which gave Mrs Benakovic an additional £25,000 and Mrs Osbourne the balance of the estate.

Some years later in 2005, Mrs Benakovic changed her mind and succeed in getting the 1997 agreement set aside.  This was because she had not been advised to seek independent legal advice by Mrs Osbourne, who had been acting as an executor of Mr Roth’s will.  Law firm Follett Stock acted for Mrs Osbourne in the case.

In 2011 Mrs Osbourne went on to accuse Follett Stock of negligence for failing to advise her to bring a case against CT for negligent advice over the 1997 agreement.  At trial Mrs Osbourne argued that her loss and cause of action against CT started in 2005 when Mrs Benakovic had the 1997 agreement set aside.  This meant she had six years from 2005 – therefore until 2011 – to bring a claim for negligence against Follett Scott.  The judge rejected this argument, accepting Follet Scott’s case that Mrs Osbourne had suffered loss at the time of the 1997 agreement.

This case provides further useful guidance when a cause of action to bring a claim starts under the Limitation Act,” said James Burgoyne, Director – Claims & Technical, Brunel Professions.  “The complex issue the court had to decide was whether the claimant’s loss was suffered at the time of the agreement in 1997 or when Mrs Benakovic changed her mind some years later.”

The case has been reported by solicitors DWF and barrister’s chambers 4 New Square.

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