Making a professional negligence claim in relation to Wills and Probate

Professional negligence is a species of the law of tort and, as with all cases of tort, the first question is whether or not the defendant owed a duty of care.

In the case of solicitors, it is a long and well-established principle that a solicitor owes a duty a care to their client. This means that a solicitor is always expected to carry out his or her work for a client with reasonable skill and care at a level that one would expect from a competent professional. A failure to meet these standards constitutes a breach of the duty of care. If that breach causes the client to suffer financial loss, then there are grounds for a claim of professional negligence.

In most practice areas of the law, the solicitor owes a duty of care only to their client. But not in the case of making Wills when the solicitor making the Will owes a duty not just to the testator (the person making the Will, the client) but also to the beneficiaries of the estate. This was established as case law by a ruling in White v Jones (1995).

Most common causes of claims

While not an exhaustive list, the following issues are the ones that most commonly give rise to Will disputes and professional negligence claims:

Defective Will

This can mean a Will which is not properly drafted or a Will which is properly drawn up but fails to reflect the testator’s wishes.

Improper or incorrect execution

In order to be valid, a Will must be executed in a precise and prescribed manner. Any failure here and the Will is not valid. While a solicitor is not generally under an obligation to ensure that a Will is properly executed, they must provide clear instructions on how to execute the Will. It’s for this reason that many solicitors opt to attend to execution in person to ensure that it is done correctly.

Testator’s lack of capacity

A solicitor may be under a duty to make at least some attempt to assess a client’s mental capacity. A Will is not valid if the testator lacked mental capacity at the time of the instructions. While solicitors are not expected to act as mental health professionals, they should, at least, raise an issue if it appears to them that their client lacks capacity to either understand advice or give clear instructions.

Undue delay

Once the solicitor has received the client’s instructions, they must draft the Will within a reasonable time. Any undue delay could cause the solicitor a problem if the client dies or loses mental capacity in the period between giving instructions and executing the Will. This issue is particularly acute in the case of a very elderly client or a client suffering from a serious illness.

Alternatives to bringing a claim

The terms of a Will can be varied for a period of up to two years following the death of the testator. So, provided the Will itself is valid, any terms which do not accurately reflect the testator’s wishes can be amended by means of a Deed of Variation. However, this option is only available provided all the beneficiaries agree to the proposed variations.

Another possible course of action is to apply to the court for rectification of a Will if it does not reflect the testator’s intention due to either a failure to understand the instructions or a clerical error. Again, the Will must be valid for rectification to be possible.

Time limits and protocols?

In the event that neither variation nor rectification is possible, or the Will or some part of the Will is invalid, then a professional negligence claim may be made. Generally speaking, any such claim must be commenced within six years of the act of negligence which, in the case of Wills, is the date of the death of the testator.

This time limit may be extended in certain circumstances. For example, if a person who may be entitled to bring a claim is a minor or where the person entitled to claim did not know about negligence. In both of these cases, the time limit for bringing the claim is three years from the point where the person has knowledge or, in the case of a minor, they turn 18 years of age.

As with all cases of professional negligence, a pre-action protocol applies which sets out the procedures which must be followed and also mandates that court proceedings must be used only as a last resort where settlement negotiations or mediation have both failed.

Consulting a solicitor

There are simply no circumstances where it would be advisable for a person to embark upon a claim for professional negligence without engaging the services of another solicitor or, at the very least, seeking professional advice and guidance. The law and procedures of professional negligence are both arcane and complex, requiring the experienced management of a solicitor who is well-versed in Wills and probate negligence claims.

For further information and trusted legal advice regarding matters of professional negligence, get in touch with our Resolution-accredited No Fault divorce lawyers in London at Carlsons Solicitors.