It is a difficult time dealing with the death of a loved one. But when it becomes apparent that the carefully made plans put in place by the deceased for the distribution of their assets have unravelled due to negligent will writing by a solicitor or will writer, or that the tax burden for their estate is higher than expected due to a poorly prepared or incomplete probate form, it is an extra stress which is most unwelcome.
The very nature of the will writing process, which is often complex and emotional, means that many mistakes can occur during the course of preparing the document. Sadly, the death of the maker of the will means that some negligent will writing cannot be put right and the beneficiaries (or intended beneficiaries) are inevitably left to deal with the financial burden of the error.
In this article we examine some of the mistakes made by solicitors and will writers when preparing wills and dealing with probate, focussing on those which we see most commonly.
1. The testator lacked capacity to make a will
As a first step, it is important that the solicitor or will writer is satisfied that the person making the will (known as the ‘testator’) has the mental capacity to do so. If the solicitor is concerned that the testator is not of sound mind for any reason, then they should make further enquiries to satisfy themselves either way. Failure to do so could lead to a subsequent challenge of the will on the basis that the testator did not have full capacity at the time they executed the will.
If a solicitor or will writer fails to address the question of capacity of the testator, or overlooked that the testator was suffering from dementia or under the influence of alcohol or drugs, for example, he or she could be held responsible by the court for the consequences of that will being invalid.
In the will writing case of Feltham v Bouskell, the court found that the solicitor had failed to establish that the testator, a 90-year-old woman who was suffering from dementia, had appropriate capacity and had failed to take the steps he should have done in order to satisfy himself of this. The principal beneficiaries under the testator’s previous will successfully challenged the new will on the grounds of her incapacity. The step-granddaughter who would have benefitted under the new (and invalid) will then brought a successful claim for negligent will writing against the solicitor for the loss she had suffered as a result.
2. Delays in carrying out instructions
It is not uncommon for wills to be prepared or updated shortly before the testator’s death, particularly if there has been a change in circumstances. A solicitor who is contacted for assistance at that time, may have only a relatively limited period in which to act. In the event that the solicitor delays, either taking instructions or then preparing and having the updated will executed in a timely manner, there is a risk that the testator may die before the new will can be executed.
It is generally expected that a solicitor will carry out their instructions within a reasonable period of time and without undue delay. The question of what is reasonable will depend upon all the circumstances; if the solicitor is aware that the death of the testator is imminent and that the preparation or updating of the will is time-critical, then it would be reasonable to expect the solicitor to act with appropriate haste.
Even if the testator’s death is unexpected, if the solicitor has delayed unreasonably in preparing the will, which could otherwise have been prepared and executed in good time to enable a valid will to have been created before the testator’s death, the solicitor may still be responsible for the consequences of their delay.
The seminal case of White v Jones, which came before the court in 1995, confirmed that a solicitor or will writer may be held responsible to disappointed beneficiaries if it can be shown that the professional delayed unduly in preparing a will for execution prior to the testator’s death. In this particular case, the court concluded that a delay of 59 days after receipt of the letter of instruction was unacceptable and negligent.
3. Poor drafting
The purpose of a will is to both assure and ensure that after a person’s death their wishes for the distribution of their assets will be carried out. However, if the wording of the will is unclear in any way, then there is a risk that the assets will be distributed against the wishes of the deceased and at odds with the expectations of the beneficiaries. Whilst the general rule is that it is unusual for a party who is not a client (commonly known as a ‘third party’) to be owed a duty of care by a solicitor, the case of Ross v Caunters confirmed that in certain circumstances a potential disappointed beneficiary will have a claim against a solicitor or will writer who makes an error when preparing a will.
In practice this could occur, for example, if a will provides for certain legacies to be distributed to ‘my children’. Such a provision would only cover biological children of the testator and any step children who were intended to benefit from such legacies under the will would not do so.
At the other end of the spectrum, wording which is too specific may also result in confusion when distributing assets. For example, referencing a specific motor vehicle such as ‘my black BMW 3 series’, which by the time of the testator’s death had been sold and replaced with an alternative make or model, will cause misunderstanding and potentially lead to an erroneous distribution of assets.
For high and ultra-high net worth individuals, tax planning is often the key driver to a professionally drafted will; the efficient drafting of the will can be crucial to ensure that the inheritance tax burden upon the estate is minimised as far as possible. Careless drafting can result in an inheritance tax bill of many hundreds of thousands of pounds, which with careful thought could have been reduced or even eradicated completely.
Sometimes the negligent will writing is simply as a result of the solicitor’s failure to take proper instructions and to take the time to properly understand the testator’s wishes; the will as then drafted reflects the solicitor’s misunderstanding and not in fact the wishes of the testator.
It is important that the solicitor takes time to understand the extent of the testator’s assets and to ensure that all have been considered. Whilst tangible assets, such as a house and jewellery, are often easily remembered, intangible assets can frequently be overlooked by the testator. It is therefore good practice for the solicitor preparing the will to prompt the testator and urge them to consider less tangible assets, such as bank or building society accounts, stocks and shares and premium bonds, for example.
If the solicitor’s careless drafting of the will has resulted in an intended beneficiary failing to receive a specific asset, then that beneficiary may have a claim against the solicitor for the value of that ‘lost’ asset
4. The will is not correctly witnessed
It is a requirement under section 9 of the Wills Act 1837 (“Act”) that for a will to be valid it must be witnessed by two separate witnesses, who must (i) be physically present (this is discussed in more detail below); (ii) be UK citizens aged 18 or above; and (iii) not be named as beneficiaries in the will or married to a beneficiary.
If a will is not properly witnessed, it may be declared void. In those circumstances, the testator will be treated as having died ‘intestate’ and their assets will be distributed according to the laws of intestacy, which may not accord with the wishes expressed in their will.
When a solicitor sends a draft will to the testator for their review and execution (signature), it is good practice for the solicitor to provide clear instructions as to how the will should be signed and witnessed and who can be a witness to the testator’s signature, so as not to cause an issue with the validity of the will or any intended bequests after their death. In addition, the solicitor should check that the will has been properly executed when it is returned to them and take appropriate steps to rectify any signing errors which have occurred.
By asking or allowing a beneficiary or a spouse of a beneficiary to witness the will, that beneficiary could be excluded from the will entirely and lose out on an otherwise valuable bequest, whether financial or sentimental.
There have been a number of negligent will writing claims where the courts have concluded that the solicitor was at fault for failing to ensure that the testator’s will was properly executed. In the case of Humblestone v Martin Tolhurst Partnership (a firm) the court concluded that the solicitors were negligent for failing to check that a will had been properly executed when it was returned to them for safe-keeping.
In Marley v Rawlings, another will writing case, a firm of solicitors was instructed to prepare wills for a husband and wife. Mrs Rawlings signed Mr Rawlings’ will in error and vice versa, rendering both wills invalid. The court held that the solicitors should pay the legal costs of the parties, rather than the estate, on the basis that it was the solicitors’ negligence which caused the litigation to arise between the beneficiaries.
The Covid-19 pandemic has also played its part in determining what is meant by being ‘physically present’ when witnessing a will, with lockdown presenting significant challenges in witnessing wills safely whilst social distancing. On 28 September 2020 the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 (‘Order’) came into force and applies to wills made on or after 31 January 2020 and on or before 31 January 2022. The Order introduced the ability to execute and witness wills validly through a live-action video link such as Zoom or Skype.
Guidance was also issued by the Government to practitioners in support of the Order. This made clear that the Order should only be used as a last resort, such as when a testator was in hospital or when there was imminent need. It also recommended (but did not require) that a recording of the video be taken and suggested amendments to the attestation clause. However, the scope for future challenge of a will witnessed in such circumstances is significant. Practitioners unused to dealing with witnessing a will by live video link, or doing so ill-prepared or under pressure, could easily have fallen foul of the provisions of the Act by failing to follow the Government’s guidance, leaving a will invalid and the wishes of the testator unfulfilled. It is still too early to see the knock-on effect of the introduction of live link video calls, but we consider that it is only a matter of time before issues become apparent and disappointed beneficiaries seek help.
5. Filing the wrong or incorrectly completed probate and inheritance tax forms
Probate is the legal term which is used for the legal process of determining the validity of the will and generally administering the testator’s assets and wishes in accordance with the provisions of the will. Naturally, this occurs following the death of the testator. Even in straightforward cases, with few assets or a relatively low value, probate can be tricky. In cases where the testator was a high or ultra-high net worth individual, where the assets to be distributed can be of substantial value and/or located worldwide and the inheritance tax bill can be considerable, probate can be fraught with difficulties.
It is therefore imperative that the solicitor instructed to deal with the probate of the testator’s estate completes and files the correct forms and also, that they include the correct information. Making an error in the course of probate can have significant financial implication, but can also carry civil or even criminal liability for the non-solicitor executors if the solicitor they have retained makes an error.
Failure to deal with probate promptly and to adhere to any required deadlines can also lead to interest and penalties being incurred if any inheritance tax due is not paid on time.
How we can assist
As professional negligence solicitors, we act for clients nationwide to resolve claims against a wide range of professionals, including solicitors and will writers.
If you are considering bringing a claim for professional negligence, and if you believe that the value of your claim is likely to exceed £100,000, we would be happy to discuss the matter with you.
Most of our clients fund their claims under a private retainer and almost all our instructions commence on this basis. However, in some cases and where requested, we may then be able to offer an alternative form of funding.
To arrange an initial consultation with us, please complete our Contact Form or email us at mail@pnclegal.com.
