When instructing a solicitor to draft a Will there is an expectation that the gifts or legacies bequeathed will pass to those relatives or friends named as beneficiaries in the Will.

This does not always happen however and beneficiaries can find themselves disappointed when they do not receive what they expected to under the Will due to a mistake made by the solicitor who drafted the Will and was responsible for checking that the Will was properly executed.

Following the case of Ross v Caunters [1980], restated in White v Jones [1995], where a Will draftsman, usually a solicitor, fails to draw a Will in the terms instructed so that an intended beneficiary fails to receive the intended inheritance, the draftsman is liable for the loss caused.

This is a rare case where someone, the beneficiary under the Will in this case, who is not a client of a solicitor is nonetheless owed a duty of care by the solicitor and the solicitor will be liable for any negligence causing loss to that beneficiary when drafting a Will.

The duty owed to the client making the Will and extended to any beneficiary under the Will extends beyond merely the preparation of the Will.

Following the case of Humblestone v Martin Tollhurst Partnership [2004] :-

“a solicitor instructed in the matter of a Will has a duty to a testator (the person making the Will) to ensure that the formalities are properly complied with (so far as it is reasonably possible for him to do so)….. a solicitor is capable of owing a duty to both testator and beneficiaries …….. to ensure and check that the proper formalities for the execution of a Will have been complied with”

What this means is that if a solicitor negligently drafts the Will so it does not achieve what the testator wanted, this is very likely to result in a beneficiary not receiving their inheritance.

Alternatively the solicitor may fail to ensure the Will is properly executed resulting in it being deemed invalid so that a beneficiary is deprived of their inheritance because the rules of intestacy apply and under those rules the beneficiary is not entitled to anything from the estate.

An example of when this might occur is when a solicitor sends a Will out to be executed. This means the Will must be signed by the testator before two witnesses. If the Will is signed twice by the testator because both witnesses were not available to witness the signing at the same time, this potentially invalidates the Will. The solicitor will be negligent if the Will is not checked for proper execution before it is filed away and before the death of the testator.

In either circumstance there is likely to be a claim for damages for negligence against the solicitor who prepared the Will.

 

If you think you did not receive an anticipated gift or legacy as a result of a mistake by the a solicitor then the Professional Negligence team at Jordans Solicitors can help you claim compensation for your loss and can be contacted on 01924 457171, or e-mail [email protected]


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