Negligent Will Drafting

If a solicitor provides negligent advice to a testator (the person making a will) it may cause a loss to the beneficiaries of the will if they are either deprived of their inheritance or the value of the estate is reduced as a result of reliance on the negligent advice.

When a solicitor is instructed to prepare a will the testator may seek advice on a range of issues including the following:

• Property – how is this to be left on a testator’s death?
• Interests of a surviving spouse
• Inheritance Tax
• Gifts to minors
• Gifts to charities

This is not an exhaustive list but if as part of the retainer between the solicitor and testator the solicitor is to provide advice then a claim for professional negligence may arise from beneficiaries where the value of the estate is reduced as consequence of reliance on the negligent advice or where beneficiaries are disappointed because they lose their entitlement under the will.

In this context advice does not have to be limited to the content of the will but will also include advice on steps the testator needs to take to give effect to the will.

By way of example, where a testator wants to leave their share of a jointly owned property to someone other that the other joint owner, the solicitor must advise the testator to serve a notice of severance of the joint tenancy so the gift will have effect. If the solicitor fails to provide this advice and the joint tenancy is not severed, the property passes to the surviving joint owner and the intended beneficiary will be deprived of their share in the property.

When instructed to prepare a will, delay by the solicitor could result in the will not being prepared at all or not sent to the testator in time to be executed. If the testator then dies or becomes to ill to provide instructions and no will can be prepared, the intended beneficiaries may lose their inheritance and bring a professional negligence claim against the solicitor.

Most professional negligence claims arising from the preparation of a will involve failure by the solicitor to act in a reasonable time.

Where there is delay, a testator may become too ill to provide instructions or die before providing instructions and the will being prepared.

In these circumstances a professional negligence claim may arise against the solicitor because the distribution of the estate under the rules of intestacy may be quite different from the distribution of the estate under the will had it been prepared and executed before the testator’s incapacity or death.

Delays of 33 and 49 days and 2 months have all been found to be negligent delays by solicitors, but each case needs to be considered on its facts and if for example a testator is particularly elderly and/or has a life-threatening condition, a shorter delay may be deemed negligent.

For a will to be validly executed there are a number of formal requirements and failure to adhere to these may result in the will being invalid with the consequence that the beneficiaries may lose their inheritance.

If a will is being executed in front of a solicitor then the solicitor should ensure the execution is valid. However, it is not uncommon for the will to be sent to the testator to execute and if that is the case the solicitor must provide sufficient and clear instructions to assist the testator in ensuring proper execution of the will. Further, if the will is returned to the solicitor for safe keeping then the solicitor is under a duty to check the execution of the will before storing so any issue affecting execution can be rectified.

Failure to provide clear instructions to the testator and/or failure to check the execution of the will may result in it being found to be invalid after the death of the testator and the solicitor would potentially be liable to compensate any disappointed beneficiaries.

There are strict requirements which must be complied with for a will to be properly executed. If a solicitor is supervising the execution of the will then they should ensure compliance.

In the event the will is sent to the testator to execute the following advice should be given:

• that the execution is by the testator and two witnesses
• that all three must be present together when the signatures are appended
• that a witness should not be a beneficiary or potential beneficiary under the Will nor a spouse or civil partner of such a person
• the signing sequence (with normal signatures):
  • the testator, opposite the attestation clause
  • witness one, under the attestation clause, giving their printed name, full address and occupation
  • witness two in the same manner
• that the Will should then be dated at the foot (or beginning, if preferred)
• that absolutely nothing should be attached to the Will.

If the will is returned to the solicitor for storage after execution, then the solicitor is under a duty to ensure the will has been properly executed. If the solicitor either fails to check the will before storage or does not notice evidence indicating it has not been correctly executed, a claim may be made against the solicitor by a disappointed beneficiary if the a loss is suffered due to the will being invalid.