Solicitors Negligence: Negligent Will Drafting.
In cases of negligence you must show that there is a duty of care owed to the person alleging a loss, the mistake relates to the duty, the duty was breached and that the breach of the duty has caused the alleged loss.What follow are examples and cases of Negligent will drafting. A solicitor owes a general duty to draft a will with reasonable care and skill. If he fails to do so, it will normally give rise to a claim providing the claimant is able to prove what he intended the will should have said.
There can be cases when there is a failure to draft a will. Solicitors have a duty to draft a will within a reasonable time frame and if a particular time is specified such as in a deathbed case more quickly. Solicitors are not however under a duty to ensure that the will is drafted or executed promptly nor is the solicitor required to continually chase the client if the client fails to execute the will.
There is no general obligation on the solicitor to ensure that the will is properly executed, however if the solicitor sent the will out to the client without providing instructions or correct instructions as to the execution requirements then that solicitor would probably be negligent.
Equally once a client had returned the will executed then if the solicitor fails to check that it has been correctly executed then a claim will probably arise in those circumstances.
It would also possibly lead to a claim in negligence if a solicitor fails to advise on certain instances in which it would become invalid such as marriage.
Interesting leading cases as to negligent will drafting are:
Ross v Caunters [1980] Ch 297
In this case beneficiaries to a will launched a claim against the firm of solicitors for failing to advise the testator that having a party witness the will who had an interest in that will would invalidate it. The beneficiaries obtained a successful judgment.
White v Jones [1995] 2 AC 207
This claim was brought by would be beneficiaries against the solicitors. The claim was that the solicitor had failed to correctly amend the will before the testators’ death and as a consequence they had suffered loss. They had not got what they should have got. The claim succeeded in recovering the money they would have received if the will had been amended correctly.
Carr-Glynn v Frearsons [1997] 2 All ER 614 C
The principle in White v Jones was extended. In this case the testator instructed the solicitor that she wanted her share of a property owned with her husband to go to her niece.
The solicitor explained a number of times about the difference between joint tenancy and tenancy in common. The testator said that she would go away and find out how the property was held. The solicitor was alleged to have been negligent for failing to advise how a notice of severance of the tenancy should be served immediately and as a consequence on death the property passed to the joint owner rather than the half being passed to the niece.
The case allowed a disappointed beneficiary to sue despite the fact that the estate itself had suffered no loss.
If it is possible the court will expect parties to mitigate their loss. If a mistake in a will is caused by a clerical error or a failure to understand the instructions then it is usually possible for a claim to be brought to rectify the will.
It can also be the case that the beneficiaries can all agree that there be a variation to correct the mistake.
In addition disappointed beneficiaries can also have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Limitation
In determining the question when the limitation period would start to run the negligent act is that of the drafting of the will the loss is that of the cost of drafting that will or correcting that will.
It is obviously normally the case that the loss is discovered after the testators’ death. In any event prior to the death any beneficiary has no right, because any will can be changed at any point. It is therefore the case that usually limitation will run from the date of the deceased death.
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