Professional Negligence Claims arising in relation to Wills and Estates

20 May 2020

When a client chooses to retain the services of a solicitor (or other professional person) they are relying on their specialist expertise to help them get the best possible outcome. A professional has a duty to exercise “reasonable care and skill” when dealing with their clients. A failure to meet this standard, giving rise to a mistake that a reasonable professional person working in the same field would not have made, could give rise to a negligence claim if the client has suffered a financial loss as a consequence of the mistake.

Negligence claims against solicitors can arise for all manner of reasons but common themes are failing to give adequate advice, missing limitation dates or court imposed deadlines, suing the wrong party, errors in drafting contracts, and under-settling claims. More specifically within the sphere of wills and estates, possible errors might include a badly drafted will, the wrong advice on probate or in relation to tax and delays in preparing a will.

In order to succeed in a professional negligence claim it is necessary to first establish the basic elements of duty, breach and causation before then moving to loss.

As a general rule, solicitors (and other professionals) are taken to assumed responsibility towards their clients thus owing a duty of care. In professional negligence claims concerning wills and estate, a solicitors duty of care extends beyond that of their client making a Will to the beneficiaries of that Will (as established in a case called White v Jones [1995] UKHL 5).

As indicated at the start of this blog, a breach of duty in a case involving a solicitor is not acting in the same way or giving different advice to that of a reasonably competent solicitor. It must then be shown that this breach of duty is directly related to the loss suffered by the individual making the claim. Loss in a professional negligence claim should have the effect of putting the individual making the claim back in the position they would have been in had it not have been for the negligent act on the part of the solicitor.

Some more examples of how a solicitor’s actions within the remit of wills and estates might give rise to professional negligence are as follows:

  1. A Will must reflect a client’s instructions. If a Will does not do so because the solicitor did not understand the law (as opposed to what the client wanted to achieve) then that would likely give rise to a professional negligence claim.
  2. There is no general obligation on a solicitor to ensure that a Will is properly executed however should a solicitor send out a Will to a Client for execution without providing any instructions or accurate instruction as to how the Will should be executed then that could amount to negligence. Similarly, a solicitor is required to check that a Will returned to them has been correctly executed.
  3. There may be a duty on a solicitor to assess a testator’s capacity to make a Will and act accordingly.
  4. A solicitor relying on a fraudulent document or documents in administering an estate may be in breach of duty. For example, the signature on a Will could be forged. 
  5. Delay in acting on instructions to prepare or update a Will could give rise to a negligence claim.

The parties to a  professional negligence claim should be alert to the Pre-Action Protocol for Professional Negligence (“the Protocol”). The Protocol sets out the procedure to be followed, the information to be exchanged and the timetable for progressing matters. The Protocol also provides that Court proceeding should be a last resort and that negotiation to settle the dispute or alternative dispute resolution should be considered. In the case of the latter, mediation is particularly common in professional negligence cases involving solicitors.

It should be borne in mind that prior to commencing a professional negligence claim in relation to a Will, it should first be considered whether a claim in rectification might be more appropriate. The applicable law provides that “If the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequences (a) of a clerical error; or (b) failure to understand his instructions, it may be ordered that the will should be rectified so as to carry out his intentions” (Section 20, Administration of Justice Act 1982). A claim for rectification must be made within 6 months from the date of issue of the Grant of Probate (or with permission of the court).

A professional negligence action should generally be brought within six years of the date of the act of the negligence. In Will disputes this is invariably the death of the testator. That limit may be extended if the person suffering loss does not know about the negligent action or if a particular individual does not yet have a right to pursue a claim (this would apply if for example the person affected was a minor at the time). In both cases, the time limit for bringing a claim is three years from the point where the individual has knowledge or is able to bring a claim (i.e. a minor turns 18 years old). If facts relevant to a claim are deliberately concealed this could give also rise to an extension of 6 years.

Further information

Our experienced team of litigators act for claimants in bringing claims against professionals when they get it wrong.  If you have any questions in relation to Professional Negligence please contact a member of our team.  You may also be interested in our Professional Negligence FAQ's.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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