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Dealing with a Will following the death of a loved one can be upsetting and stressful. This can be made even worse if you discover that there is some kind of problem with the Will.
The professionals responsible for writing the Will should work to a high standard to ensure that the Will reflects the wishes of the testator (person making the Will). Unfortunately, this does not always happen, and problems such as negligence can occur.
If you or the testator engaged a solicitor/legal professional to write a Will, and an error was made leading to further distress, financial loss or complication, this could be a negligent act and you could be eligible to make a claim against the firm for professional negligence.
Sometimes, matters can be rectified by using a Deed of Variation, but this is not always the case.
Reasons to make a Professional Negligence Claim
Any professional who prepares a Will or Trust document owes a duty to their client to do so with reasonable care and skill. Examples of where that duty might be breached in relation to Wills and estates are:
• Errors contained within the Will
• If the Will is drafted badly or incorrectly and does reflect the testator’s intended instructions.
• If the professional did not understand the law and/or has provided incorrect advice to the testator
• Significant delays in acting on instructions to prepare or update a Will. In particular, a death-bed Will should be handled with urgency.
• Whilst a legal professional is not under an obligation to ensure that the Will is properly executed, they should provide the testator with instructions on the execution to allow the client to ensure it is properly executed. They should also check that the Will is properly executed when it is returned to them.
• A failure to consider the testator’s capacity or if there is any undue influence present.
• A professional relying on a fraudulent document or documents in administering an estate may be in breach of duty. For example, the signature on a Will could be forged.
How do I prove that a Solicitor/Professional has been negligent?
There are three requirements in law to prove that someone has been negligent:
1. that they owed you a duty of care
2. that they breached that duty of care
3. that their breach of duty has caused you a financial loss
Who can make the claim?
• The testator who instructed the solicitor/legal professional to draft the Will can bring the claim if the defective Will has caused them a loss or potentially will cause them a loss;
• The spouse of the deceased may bring a claim if their mirror Will is defective which has caused them a loss; and
• A beneficiary of a Will can bring a claim if the Will was not properly drafted to reflect the testator’s wishes. The case of White v Jones 1995 confirms that the solicitor’s duty of care in making a Will also extends to the beneficiaries of that Will.
How long do I have to make the claim?
You generally have six years from the date of the negligent act or three years from the date that you realised the negligent act had occurred to issue court proceedings. There are exceptions to this however. If you are considering bringing a claim, we recommend you seek specialist legal advice as soon as possible.
Do I need to go to Court?
There is a Pre-Action Protocol for Professional Negligence (“the Protocol”), which sets out the procedure to be followed, the information to be exchanged and the timetable for progressing matters. The Protocol states that Court proceedings should be a last resort and that negotiation to settle the dispute or alternative dispute resolution should be considered.
Do I need to make a claim?
Not in every case. Prior to commencing a professional negligence claim about a Will, you should first consider whether a claim in rectification might be more appropriate.
The law states that “If the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequences (a) of a clerical error; or (b) failure to understand his instructions, it may be ordered that the will should be rectified so as to carry out his intentions” (Section 20, Administration of Justice Act 1982). A claim for rectification must be made within 6 months from the date of issue of the Grant of Probate (or with permission of the court).
If you have issues relating to the conduct or advice of a professional in relation to Wills, Trusts, Estates or any claim you may have, please contact Kax Chana on 01827 317070 or kchana@pickerings-solicitors.com
