Many people still do not realise that a solicitor or professional will writer owes a duty of care to a beneficiary of a Will, and if that beneficiary suffers a loss due to their negligence, the solicitor or will writer can be held liable.
Until relatively recently it was thought that solicitors only owed a duty of care to their client. Where wills are concerned the client is the testator, so if an error is made by the solicitor it was thought that only the testator could sue. In most cases this was unlikely to happen as if the testator was alive he could simply instruct another solicitor to prepare the will correctly, and if he was dead then he would be unlikely to have suffered any financial loss himself.
This position was not regarded as satisfactory as it allowed solicitors to escape liability even in cases where there had been gross negligence and third parties had lost out.
The big change eventually came with the landmark ruling of White v Jones in the mid 1990’s The brief facts of that case are as follows.
The deceased fell out with his daughters after his wife died. In March 1986 solicitors prepared a will (in 3 weeks), which excluded the daughters, leaving the estate to his son in law (one of the daughter's former husband), and their children. On 17 July 1986 a letter arrived at the solicitors’ office, written on the deceased's behalf, stating that he wished to leave his daughters £9,000 each. It was not clear from this letter precisely how this should be put into effect or how the residuary estate should be divided.
The solicitor made appointments to see the deceased on three successive Thursdays, but did not keep them. On 17 August the solicitor went on holiday. By the time he returned, the deceased was on holiday himself and the solicitor made an appointment to see him on 17 September after his return. The deceased unexpectedly died on 14 September. Therefore there was delay of 44 days, or effectively 5 weeks, where a will could have been executed before the deceased went away on holiday.
The House of Lords held that the solicitors were negligent, and that the loss suffered by each of the daughters was £9,000, being the position that they would have been in had the new will been executed. Crucially, neither the Court of Appeal nor the House of Lords found any difficulty in the fact that the letter of instruction was incomplete in some crucial details.
This case differs from that of Trusted v Clifford Chance  where it was found that the deceased’s intentions were not sufficiently clear. The brief facts of that case were:
The deceased was an extremely wealthy man. His last will provided that there was to be small (in the context of his considerable wealth) pecuniary legacies to the claimant, with the residuary estate going to two nephews. Following a heart attack, the deceased contacted his solicitors, and had a number of conferences with them regarding complicated changes to his will, which would have created a discretionary family trust and a charitable trust.
The Will was never prepared, but the claim failed, primarily on the grounds that the deceased didn’t reached a position where he could give the solicitor definite and comprehensive instructions as to the dispositions of his estate to be effected by the new will.
The Courts have also been resistant to attempts by solicitors to cut down their duty of care. In Esterhuizen v Allied Dunbar Insurance Plc  the defendants were not solicitors, but a company providing a will writing service. An employee of the company came to the deceased's house to oversee execution of the will, but the deceased refused to be driven to a garage so that an additional witness could be found. The employee left written instructions on how to execute a will so that he could do it at a later date. The will was invalid when the deceased died, as it was only witnessed by one person. The Court held that the defendants were negligent “as a prudent solicitor regards it as his duty to take reasonable steps to assist his client in and about the execution of his will, rather than merely to inform the client how it is to be signed and attested.”
Defendants in professional negligence claims will often raise the “ball was in the deceased’s court” argument. This quote comes from Atkins v Dunn & Baker  but the facts of that case demonstrate the relevance of that defence:
The deceased's previous will left everything to his daughter. The deceased then married in 1996. In 1997 the deceased contacted his solicitor and gave clear instructions for a will to be prepared, with occupation of the family home to his wife and the remainder to his daughter. The solicitors sent a draft will to the deceased in February 1997, stating that they “look forward to hearing from you”. Those solicitors then heard nothing more from the deceased. They sent no reminders. The deceased died in 2000 intestate; so the whole estate went to the wife. The daughter brought a professional negligence claim but the trial judge found against her on the facts. The judge was “unable to accept that invariably and inevitably there is a duty upon a solicitor, who has carried out instructions to prepare a draft Will and has sent that draft to the client, to follow the matter up”. The Court was therefore entitled to hold that "the ball was in the client's court", and that the failure to send a reminder did not constitute such a fall below the standard to be expected of a competent solicitor as to amount to negligence.”
In terms of timescales for preparing a Will when the client is terminally ill, guidance was given in the case of X v Woollcombe Yonge . In that case the deceased was in hospital having chemotherapy for liver cancer. She had no children and her previous will left her estate to charity, but she decided to change her will to benefit X, a grand niece. On 25 June she called the solicitors. On 26 June the solicitor visited and took instructions for the will; he did not get the impression she was about to die imminently. The probate clerk was away and so did nothing to draft the will until 1 July, on which day D died. The evidence was that the will would have been ready for execution on 3 July. The Judge held that “where there is a plain and substantial risk of the client's imminent death, anything other than a handwritten rough codicil prepared on the spot for signature may be negligent.” However, he found that death was not plainly imminent for the deceased in this case and that “so far as preparing the will promptly is concerned, I consider that a period of seven days in the case of someone like [the deceased], as she appeared to [the solicitor], was not an unreasonable period.”
Establishing a breach of duty of care in these cases is the main hurdle. Once you have done so, causation and loss should follow. The loss will invariably be the sum which the beneficiary would have received had the Will been drafted before the deceased died.
Overview of case law
- A solicitor or Will Writer should arrange an appointment to see the client ASAP in every case. A delay of 5 weeks can amount to professional negligence.
- A solicitor or will writer should draft a Will ASAP upon receipt of the instructions.
- If there is doubt as to life expectancy, a solicitor or will writer should draft the Will during the meeting.
- If a client is clearly unwell but not expected to die on the particular day that he or she did, a delay of 7 days in preparing the Will may not be an unreasonable period of time.
- A solicitor or will writer should assist the client in executing the Will.
- Providing a solicitor or will writer drafts the Will in accordance with the deceased’s instructions and sends it to the deceased to execute, there should be no finding of professional negligence.
- There is no obligation on a solicitor or will writer to chase a client to return a draft Will.
We specialise in the areas of Contested Probate and Professional Negligence and are experienced in dealing with claims against lawyers for negligence in relation to the preparation of wills and administering estates.
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