Can a beneficiary claim against a solicitor?
A solicitor owes a duty of care to a beneficiary of a Will. If a beneficiary loses out due to the solicitor’s negligence, compensation can be claimed. If you are looking for experienced lawyers to make a beneficiary claim agasinst a solicitor on a no win, no fee basis then we are here to help. For a free case assessment call our legal helpline on 0808 139 1599 or send us an email.
A solicitor’s duty of care
Until relatively recently it was thought that solicitors only owed a duty of care to their client. Where Wills are concerned the person making the Will is the client, 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, which confirmed that it is possible for beneficiaries to make a claim against a solicitor. Will writers are also liable to beneficiaries in this way.
Negligent delay in preparing a Will
One of the most common examples of negligence in relation to Wills is delay in preparing a Will.
Obviously if someone dies before their Will is executed then the Will doesn’t take effect and the beneficiaries lose out.
However, solicitors facing compensation claims often raise the “ball was in the deceased’s court” argument. This comes from a case in which the solicitors sent a draft Will to the deceased, stating we “look forward to hearing from you”. Those solicitors then heard nothing more from the deceased and they sent him no reminders. The deceased eventually died without the Will being executed and his beneficiaries sued the solicitor. The claim failed because the court felt it was resonable for the solicitors to work on the basis that “the ball was in the client’s court”, and that the failure to send a reminder did not amount to negligence.
So, if a beneficiary losses out due to a delay on the part of a solicitor in preparing a WIll it is necessary to look at precisely what occurred and what had been agreed.
The acceptable timescale for preparing a Will varies according to the circumstances of each individual case and specialist legal advice should always be taken. In one leading case the judge said that if the client is terminally ill and there is a plain and substantial risk of imminent death, then anything other than a handwritten rough codicil prepared on the spot for signature may be negligent. However, where the client is seriously ill but death is not plainly imminent, then a period of seven days is more appropriate.
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 correctly and validly.
Overview of the 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 about 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, 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; and
- There is no obligation on a solicitor or Will writer to chase a client to return a draft Will.
How we can help with a beneficiary claim against a solicitor
We specialise in the areas of contested Will claims and professional negligence. We are therefore highly experienced in dealing with claims against solicitors for negligence in relation to Wills and estate administration.
We operate a FREE helpline, so if you are a beneficiary who has suffered loss and you want to know where you stand on making a beneficiary claim against a solicitor then give us a call on 0808 139 1599 or email [email protected]
Click here for more information about Wills Negligence