Negligent drafting of Wills can cause more than distress

One particularly distressing circumstance in which it may be necessary to make a professional negligence claim against a solicitor is where a will has been negligently drafted or executed.

Duty of care

All professional will writers, solicitors or otherwise, owe a duty of care to both testators (those writing the will) and beneficiaries (those who stand to benefit from the will's execution).

The duty of care owed to testators is relatively clear – however, the duty of care owed to beneficiaries has taken a number of years to be clearly defined in case law.

Some of the cases which have helped pave the way for this latter duty of care are as follows:

  • Ross v Caunters 1980 – a first instance decision in which a group of beneficiaries launched a professional negligence claim against solicitors for their failure to advise a testator that having an interested party as a witness to a will would invalidate the document. The claim obtained a successful judgement which was later reaffirmed at the House of Lords.
  • White v Jones (1995) – this case helped cement the position of Ross v Caunters. The negligence claim was brought by a group of would-be beneficiaries against a solicitor, who, they said, failed to correctly amend the will of a testator before his death. The claimants succeeded in recovering the money they would have received had the will been amended in accordance with the testator's wishes.

Carr-Glynn v Frearsons – In this case the testatrix owned a property as joint tenant in equity. In her will she left her half-share to her niece. However, when the testatrix died, the property passed under the joint tenancy to the surviving joint tenant, leaving the niece disappointed. As a result the niece made a claim against the wills solicitor for breach of duty of care, despite there having been no direct relationship. She argued that that the firm had failed to ensure the joint tenancy was severed and had therefore been negligent in ensuring her aunt's wishes. The Court of Appeal ruled that the firm should have acted to ensure that it was possible for the testatrix's express wishes to be carried out.

Most common forms of wills negligence

There are many circumstances in wish it may be possible to make a negligence claim against a wills solicitor. Some of the more common circumstances are:

  • Where the testator made a will despite lacking mental capacity
  • Unclear or contradictory wills writing
  • Invalid witnesses or unsigned wills
  • Drafting or documentation errors
  • Unacceptable delays in drafting services meaning the deceased has died intestate (without writing a will).

Wills negligence claims with Healys

Our Brighton and London teams are on hand to offer their advice and expertise with a professional negligence claim against a wills solicitor. Contact us by using our call-back form, emails our partners or call directly on 020 7822 4106.

 

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Robert Johnson
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