What happens if a will fails to carry out a testator’s intention either by reason of a clerical error or due to a failure by the drafting solicitor to understand the testator’s instructions?
If the result is that a beneficiary is not paid out from the will, either because a gift fails or the entire will is invalid, should the first part of call be a professional negligence solicitor? Like many legal issues the answer is not straight forward.
Duty to mitigate
When a disappointed beneficiary is considering making a professional negligence claim due to a clerical error in a will they are under a duty to take all reasonable steps to mitigate the loss suffered as a result of the negligent act or omission by the solicitor who prepared the will.
Mitigation should include consideration of whether an application for rectification of the will is appropriate. This exercise should include consideration of whether an application would be in time as it must be made within six months of the grant of representation.
Consideration should also be given to whether the mistake amounts to a clerical error. Decided cases show that clerical error means an inadvertent error in recording the testator’s desired words or where the solicitor has not applied their mind to the significance or effect of particular words inserted into the will, with the effect that the words do not give effect to the testator’s intentions.
If rectification is possible and an application has sufficient merit, then it may result in the disappointed beneficiary either having their inheritance confirmed if lost as a result of the error, or increased if decreased in value by the error stop.
However, even if an application is successful, the costs of the application may be taken from the estate in which case all beneficiaries under the will may receive a reduced share of the estate stop if the value of the estate is depleted by the costs of rectification, in negligence claim may still arise against the solicitor who negligently prepared the will stop.
It may be the case that the costs of an application to rectify the will are significantly higher than the loss to any of the beneficiaries and it may be more cost effective to make a professional negligence claim without applying for rectification.
If you have lost out as a result of negligence by a solicitor preparing a will we may be able to help you.
Get in touch with our specialist team
Jordans Solicitors’ Lost Inheritance Claims’ team are here to help with your potential claim. Just contact them at any one of our five branches in Dewsbury, Horsforth, Penistone, Selby and Wakefield, on 033 0300 1103, and they will help guide you further.
