Solicitor negligence through failing to prepare a will in time

A solicitor drafting a will owes a duty of care to his client to prepare a will with proper care and skill. If the person drafting the will makes a mistake or gives poor advice , his client (the testator making the will) has a right of action against him to recover any loss. However, by the time a mistake has been discovered the testator is dead and has not himself suffered any loss. Any loss from a badly drafted will usually falls on the disappointed beneficiaries i.e. those who ought to have inherited were it not for the mistake.

But what is the solicitor failed to prepare any will in time? I was recently contacted by a client whose Solicitor had failed to prepare his elderly Father’s Will prior to his Father’s death. His situation is not too dissimilar to the case of White v Jones (1995) that went to the House of Lords.

In that case the Wills solicitor failed to prepare a Will for an elderly testator. A period in excess of 40 days elapsed between instructions and the testator’s death without the Will being prepared. The Will draftsman’s failure;

1. Produced no loss to the estate, but
2. It did result in a loss of intended benefit to the testator’s daughters (as no provision was made for them in the existing Will).

Recovering Losses

The decision in White v Jones allowed the claimants to recover this loss from the Wills solicitor. This was a ground breaking decision.

I was able to advise my client that;

1. A Wills solicitor owes a duty of care to his client the testator.
2. If the Wills solicitor breaches that duty and causes loss, his client (the testator) has a right of action against him to recover the loss. However, as referred to above, the loss will usually fall on the disappointed beneficiaries rather than the testator.
3. In these circumstances the right to take action on the breach of duty of care owed to the testator transfers to those who have suffered loss.

The critical issues facing Wills solicitors after White v Jones are;

1. The potential risk for the Wills solicitor lies in owing a duty of care not only to his client the testator but also to any intended beneficiaries
2. Delay in failing to prepare a Will in time can amount to negligence.
3. The courts since White v Jones have not clearly stated how much delay amounts to negligence. It depends on all the circumstances including the date of first instruction, the date of meeting, the age of the deceased, state of health, whether the solicitor ought to have reasonably anticipated any urgency (age or illness), any further notice e.g. suddenly rushed to hospital after first meeting.

We are looking into make a claim for solicitor negligence against those drafted my client’s Father’s Will. The main issue was the time taken to draft the Will despite his Father’s age. Will preparation can be a hazardous business especially when receiving instructions from someone who may be at risk of imminent death and delays can be very costly.

If you want to contest a Will you need to bring your claim as soon as possible as time limits apply and the earlier you act the better. Find out more about will disputes and how we can help.

By Lowri Bryer