Since the late 1970s it has been firmly established that the person who prepared a will can be liable to an intended beneficiary who misses out because of an error in the way a will has been prepared.
A duty of care is owed to an intended beneficiary to ensure that the testator’s wishes are carried out. This has not always been the case and the most significant authority on this point is the 1995 judgment of the House of Lords in White v Jones.
Broadly speaking negligence in the preparation of a will tends to arise in one of three ways:-
The will is ineffective due to errors in the way it has been executed; or
The will does not reflect the testator’s instructions to the person who prepared the will; or
There was an unreasonable delay in the will being executed and the testator dies before it can be executed
Until the testator dies any negligence in the preparation of their will can possibly be rectified by executing a new will. For this reason, it is highly unlikely that a negligence claim in relation to a will can succeed (other than for the costs of preparation of the will) until after the death of the person who made the will.
Where there is negligence in the preparation of a will it is important to consider who prepared the will. The preparation of wills is not regulated and so the work may not necessarily have been completed by a solicitor. Solicitors are required to be insured against negligence but other will drafters may not be insured.
The individual who prepared a will may also have sought to limit the extent of their liability by their contractual terms with the testator. If so, this may or may not be effective depending on how any exclusions of liability have been worded and it may depend on whether those terms have been incorporated into the contract with the testator.
Possible types of Negligence:-
Does the will reflect the testator’s wishes?
The testator will have provided instructions to the person preparing their will setting out their wishes. Ordinarily, these instructions should be recorded in writing by the person preparing the will or the instructions may have been given in writing. A third party may also have been present when the instructions were provided by the testator who could give evidence of the wishes that were expressed.
When people make wills they are not always aware of the implications of their wishes. It is possible that the person preparing the will should consider the possible tax implications of any proposed gifts and whether any jointly owned property would pass automatically to co-owners on the death of the testator by reason of survivorship and irrespective of contrary wishes expressed in a will. These duties can be owned to the testator and also to any intended beneficiaries
Often tax advice is excluded from the terms of business of a party who prepares a will and, if a will results in adverse tax consequences that could have been avoided, it should be considered carefully whether advice on tax issues should have been given.
For example, a house that is jointly owned by a testator and their partner may be held as joint tenants and that would mean that, on the death of the testator, their interest in the house would pass to their partner. If the testator had made a will stating that their interest in the house should pass to someone other than their partner that gift would fail. To give effect to that wish the testator would need to take steps to sever the joint tenancy prior to their death. Depending on how the instructions were provided and what advice was received, these circumstances could give rise to a claim in negligence by the partner against the person who prepared and advised on the will.
Has a Will been executed correctly?
Wills must be:
- In writing
- Signed by the testator (or by a third party at the testator’s direction in the presence of the testator
- In the presence of 2 witnesses who sign or acknowledge the testator’s signing of the will.
The testator must also intend that his signature give effect to the will
Failure to comply with the requirements set out above will mean that the will is invalid.
A solicitor who prepares a will has a duty to give advice on how the will must be executed assuming that they do not witness the execution of the will. If this advice was not provided to the testator and the will was not correctly executed then this may give rise to claims against the solicitor by an intended beneficiary who suffers loss when the will is invalid.
The valid execution of a will may also be challenged by a person who stands to benefit from the will being held to be invalid. Please see our guidance on challenges to wills here.
Was there delay meaning that the will was not prepared or executed before death?
Where instructions have been given to prepare a will and that will has either not been prepared or has not been executed by the time of death, the deceased’s wishes may not be carried out.
If the reason for this is as a result of an unreasonable delay by a solicitor instructed to prepare the will, this may give rise to a claim in negligence that can be pursued by an intended beneficiary.
Not all delays are unreasonable. Determination of whether a delay is unreasonable is dependent on the circumstances of any given case but, as a broad rule of thumb, if imminent death can be anticipated the solicitor is under a duty to act more quickly.