Solicitors Negligence: Negligent Will Drafting.
Solicitors’ Negligence in Will Writing
When a solicitor drafts a will, they must exercise reasonable care and skill to ensure the will accurately reflects the testator’s intentions and is legally valid. Negligent will drafting can result in significant losses for the intended beneficiaries of the will. Under English law, even though beneficiaries are not the solicitor’s direct clients, a solicitor may still owe them a duty of care. This means that if mistakes in the will-writing process cause a beneficiary to lose an inheritance, the beneficiary may be entitled to bring a claim for professional negligence.
Duty of Care to Beneficiaries
Solicitors owe a professional duty of care not only to the person making the will (the testator) but also to the will’s intended beneficiaries. This principle was firmly established by case law (for example, the landmark case White v Jones in 1995). If a solicitor’s error means an intended beneficiary does not receive the inheritance the testator intended for them, the solicitor can be held liable for that loss. In practice, the law recognises that “disappointed beneficiaries”, those deprived of an inheritance due to a solicitor’s negligence, may pursue a negligence claim against the will-drafting solicitor. Of course, a solicitor’s duty to beneficiaries must not conflict with their duty to their client (the testator), but generally a competent solicitor is expected to avoid mistakes that would undermine the testator’s final wishes.
Common Examples of Negligence in Will Drafting
There are several common ways in which negligence in will writing can occur. These errors or omissions can invalidate a will or alter its effect, leading to unintended outcomes:
- Drafting Errors: Mistakes in the wording of the will, such as unclear or incorrect language, spelling mistakes, or omitting key provisions. Poor drafting can render a clause ambiguous or fail to carry out the testator’s true intentions. For example, naming the wrong beneficiary or asset, or using vague terms, may result in the will being interpreted contrary to the deceased’s wishes.
- Delay: Undue delay in preparing or finalising a will. If a solicitor takes too long to draft a will, especially when the client is elderly or in poor health, the testator might pass away before signing the new will. This could mean the estate is distributed under an old will or under intestacy rules (if no valid will existed), leaving intended beneficiaries without their inheritance. Solicitors are expected to draft wills within a reasonable time, particularly in urgent circumstances (e.g. a “deathbed” will).
- Improper Execution: Failing to ensure the will is executed correctly according to legal formalities. A will must be signed by the testator in the presence of two witnesses who also sign. Negligence might include a solicitor not providing clear instructions on how to sign and witness the will, or failing to check that the signed will meets the witnessing requirements. An improperly executed will can be declared invalid, defeating the testator’s intentions and harming the beneficiaries.
- Advice Failures: Not advising the client on important issues that affect the validity or effectiveness of the will. For instance, a solicitor should warn that marriage revokes an existing will, or advise on how to properly deal with jointly-owned property (such as severing a joint tenancy if the client intends to leave their share to someone else). Failure to advise on such matters can result in the will being ineffective (e.g. a gift failing because an asset passes by survivorship, or a will being revoked unbeknownst to the testator).
- Capacity Issues: Proceeding with a will despite the testator lacking testamentary capacity or being under undue influence. A solicitor has a duty to assess whether the client has mental capacity to make a will and is making decisions freely. If a will is prepared for someone who does not understand its implications or is coerced, it may be challenged and declared invalid. Negligently allowing a will to be made under these conditions can leave beneficiaries (who would have benefited under a prior valid will or intestacy) with grounds to claim the solicitor was at fault.
Limitation Periods
Beneficiaries considering a negligence claim should be mindful of the limitation periods for bringing a legal action. In general, a claim for professional negligence must be brought within six years from the date the negligence caused a loss. In the context of will drafting, an intended beneficiary usually only suffers loss when the testator dies and the defective will takes effect (or fails to take effect). Therefore, the six-year limitation “clock” often starts from the date of death, since before the testator’s death the will can still be corrected and no loss has actually occurred.
There are exceptions that can extend this timeframe. Under the Limitation Act 1980, if a claimant only discovers the negligence later, they may have an additional three years from the date of knowledge of the material facts to bring the claim (subject to a long-stop date). However, there is an ultimate long-stop limitation of 15 years from the date of the solicitor’s negligent act or omission, regardless of when it was discovered. It is important not to delay – once the relevant limitation period expires, the claim will be time-barred. Beneficiaries who suspect a will was negligently drafted should seek legal advice as soon as possible to avoid missing these deadlines.
Contact Us
If you believe you have lost an inheritance due to a solicitor’s negligence in will writing we can provide clear guidance on your options. We specialise in professional negligence cases, including solicitors’ negligence claims relating to wills. Call us on 0151 541 2040 to discuss your situation, or email us at info@carruthers-law.co.uk. You can also reach out through our contact page to arrange a consultation. We are here to help you understand your rights and pursue the compensation you may be entitled to.