Contesting a negligently drafted Wills

When a will is prepared carelessly, or a solicitor or will writer fails to carry out their client’s instructions, the people who should have inherited can lose out. If you have missed out on an inheritance because of a badly drafted or mishandled will, you may be able to bring a professional negligence claim to recover what you have lost.

Call us on 0161 930 5151 or email willdisputeteam@gorvins.com for a confidential conversation about a negligently drafted will.

What is a negligently drafted will?

A negligently drafted will is one where the professional who prepared it, whether a solicitor, a will writer or another adviser, has fallen below the standard of care reasonably expected of them, and that failure has caused a financial loss. This is different from challenging whether a will is valid. Here, the will may be perfectly valid, but it does not achieve what the deceased intended because of a professional’s mistake.

Because the problem usually only comes to light after the person has died, when the will can no longer be corrected, it is often the intended beneficiaries who are left to put things right.

Can a beneficiary claim against the solicitor who wrote a will?

Yes. Ordinarily a solicitor owes a duty only to their own client. But in will cases the courts have extended that duty to intended beneficiaries. The leading case, White v Jones, established that where a solicitor’s negligence deprives an intended beneficiary of their inheritance, that beneficiary can bring a claim in their own right, even though they were not the solicitor’s client.

This is known as a disappointed beneficiary claim, and it is why you do not have to have been the person who instructed the will in order to sue over how it was prepared.

Common examples of negligent will drafting

Professional negligence in wills can take many forms, including:

• Delay — taking too long to prepare or arrange signing of the will, so the person dies before it takes effect (the situation in White v Jones itself)
• Defective execution — failing to ensure the will was signed and witnessed correctly, so it is invalid
• Failing to follow instructions — drafting a will that does not reflect what the client actually asked for
• Poor drafting — ambiguous or incorrect wording that defeats the client’s intentions or triggers a dispute
• Failing to assess capacity — not properly checking capacity, so the will is later challenged and set aside
• Missing legal steps — for example, failing to advise on severing a joint tenancy, so property passes automatically to a co-owner instead of under the will
• Negligent tax advice — poor or missing advice that leaves the estate facing an avoidable inheritance tax liability

What do you have to prove?

A professional negligence claim has four essential elements, all of which must be established:

• Duty of care — that the professional owed you a duty (extended to intended beneficiaries under White v Jones)
• Breach — that they fell below the standard of a reasonably competent professional
• Causation — that the breach caused your loss, rather than something else
• Loss — a quantifiable financial loss, usually the inheritance you should have received

Compensation is generally aimed at putting you in the position you would have been in had the will been prepared properly.

What is the time limit for a negligent will claim?

Professional negligence claims must normally be brought within six years of the date the loss was suffered. In will-drafting cases, an intended beneficiary usually suffers no loss until the person dies, because until then the will could still be changed. For that reason the six-year clock generally runs from the date of death rather than the date the will was prepared.

There are important exceptions. If you only discover the negligence later, the Limitation Act may allow an additional three years from the date you had the relevant knowledge, subject to an overall long-stop of fifteen years from the negligent act. Limitation in these cases is genuinely complex and fact-sensitive, so you should take advice promptly rather than assume you are in or out of time. Confidence level: Very confident on the general framework; the precise deadline always depends on the facts.

Negligent will claims versus contesting a will

It is worth being clear about the difference, because the right route affects who you claim against and what you recover:

• A challenge to the validity of a will is a dispute about the will itself, brought against the estate, on grounds such as lack of capacity or undue influence.
• A negligent drafting claim is a professional negligence claim against the will writer or solicitor and their insurers, to recover a financial loss caused by their mistake.

Sometimes both are possible arising out of the same facts, for example where a solicitor negligently failed to assess capacity, the will is set aside, and a beneficiary who lost out then claims against the solicitor. We will advise you on the best route, or combination of routes, for your situation.

How Gorvins can help

Our team has considerable experience bringing professional negligence claims relating to wills. We can:

• assess whether you have a viable disappointed beneficiary claim
• obtain the will file and establish what instructions were actually given
• identify the professional at fault and their insurers
• quantify your loss and the compensation you should recover
• advise on limitation and act quickly to protect your position
• negotiate or, where necessary, litigate the claim to conclusion

Where the will may also be invalid, our specialists in mental capacity and contesting a will can also advise.

Gorvins is a Legal 500 recognised firm based in Stockport, acting for clients across Greater Manchester, the North West and nationally.

Call us on 0161 930 5151, email willdisputeteam@gorvins.com, or complete the enquiry form below and we will call you back.

Negligently drafted wills FAQs

Can I sue a solicitor for a badly written will?

Yes. Although a solicitor’s main duty is to their client, the courts have extended that duty to intended beneficiaries. Under White v Jones, a beneficiary who loses out because of a solicitor’s negligence in preparing a will can bring a claim in their own right.

What counts as negligence in drafting a will?

Examples include delay that means the person dies before the will takes effect, failing to have the will signed and witnessed correctly, not following the client’s instructions, ambiguous drafting, failing to assess capacity, missing steps such as severing a joint tenancy, and negligent tax advice.

How long do I have to bring a negligent will claim?

Generally six years, and in will-drafting cases the clock usually runs from the date of death rather than when the will was prepared. A further three years may run from the date you discovered the negligence, subject to a fifteen-year long-stop. Limitation here is complex, so take advice promptly.

What compensation can I recover?

Usually the value of the inheritance you would have received had the will been prepared correctly, aimed at putting you in the position you should have been in. In some cases wasted costs and tax losses can also be recovered.

Who do I claim against, the estate or the solicitor?

A negligent drafting claim is against the will writer or solicitor and their professional indemnity insurers, not the estate. This is different from contesting a will’s validity, which is a claim against the estate.

Is a claim against a will writer different from one against a solicitor?

The legal principles are similar, but unregulated will writers may not carry the same insurance or professional oversight as solicitors, which can affect how a claim is pursued and whether compensation is recoverable. We can advise on the practical position in your case.