Negligent Will Drafting & Negligently Drafted Wills
The second category of negligence relates to the manner in which the Will itself is drafted. This can cover a multitude of cases, ranging from a failure to secure effective disposition of property, through to failure to draft the Will in accordance with the testator’s instructions.
We are happy to consider any potential negligent will drafting claim on a free of charge basis, so if you are in any doubt about whether the circumstances of your case give rise to a valid negligence claim then why not take advantage of our FREE professional negligence Case Assessment Service. All you need to do is contact us with details of your negligence claim (by email or phone) and we will provide you with a case assessment completely free of charge. When contacting us it would be helpful if you could provide the following details:
a) Why do you think the Will has been negligently drafted?
b) Which provisions of the Will do the allegations of negligence relate to?
c) What financial loss have you suffered as a result of the negligent Will drafting?
To give you an idea of some of the most common scenarios that could give rise to a claim for negligent will drafting here are a few examples:
1. Failure to provide correct tax advice
The extent of a solicitor’s duty to provide accurate tax advice will depend on the facts of each particular case. A good starting point is always the solicitor’s retainer. Did the solicitor confirm in his client care letter that he would be providing tax advice? If not, then the Court will look at whether the giving of the tax advice was central to the issues involved in preparing the Will. Generally speaking, Courts are more likely to place a high burden on solicitors whose client is inexperienced in financial and legal matters. If you think that a solicitor has provided negligent tax advice then give us a call.
2. Lack of testamentary capacity
Solicitors are under a duty to consider the testamentary capacity of the testator. In the case of Re: Simpson, Templeman J laid down what has become known as the “Golden Rule”. Put simply, the Golden Rule specifies that where a solicitor is taking Will instructions from an aged or seriously ill testator then the Will should be witnessed or approved by a medical practitioner who is satisfied that the testator has capacity. If a solicitor fails to comply with the Golden Rule and as a result litigation costs are incurred then the solicitor himself may be negligent and held liable for the costs.
3. Claims under the Inheritance (Provision for Family and Dependants) Act 1975
When a solicitor drafts a Will, consideration should be given to the risk of a claim being made under the Inheritance (Provision for Family and Dependants) Act 1975 – sometimes known as IPFDA Claims or simply “The ’75 Act”.
Of course, inheritance claims cannot always be avoided, even with careful drafting. Nevertheless, the solicitor should consider whether adequate provision has been made for dependants and draw the testator’s attention to any potential claim.
Should a solicitor fail to highlight a significant risk of an IPFDA claim then that could be a negligent omission giving rise to a negligence claim against the solicitor for the costs of any subsequent Inheritance Act proceedings.
4. Internet Wills providers
The companies who offer cut-price Wills on the internet or in the back pages of the local paper are rarely able to offer the quality of Will preparation that the Courts have grown to expect from traditional high street solicitors.
The product supplied to the consumer by these operators is frequently poor and substandard. Negligence claims against Will writers are on the increase. However these negligence claims are not always plain sailing as:
Many internet Will providers are not insured. So, even if you can establish that they are guilty of negligent will drafting there is no guarantee (as with a firm of solicitors) that they will have the means to pay you any compensation awarded. Care has to be taken to avoid a situation where a pyrrhic victory is achieved, leaving the claimant facing a hefty bill for their own solicitors costs and legal fees.
Internet Will providers generally attempt to limit their liability to the consumer by narrowly defining the terms and conditions of service. Essentially, they offer to prepare a basic document without taking responsibility for providing legal advice or supervising its execution. This is fine, so long as any limitation in the scope of service, and the liability they seek to exclude, have been clearly communicated to the consumer.
Clients need to appreciate the difference between a Will in the traditional sense (provided by a fully regulated, fully insured firm of solicitors in accordance with customary high levels of client service and extensive duties of care) and a document that merely reflects the testator’s instructions prepared by an unqualified will writer.
As with many things in life, you get what you pay for. So, if you see Wills being offered at a cut price fee, be sure to identify the level of service you will be receiving and the qualifications of the person preparing it. If however you fall victim to negligence by a will writer or encounter a negligently drafted will then give us a call.
5. Joint property
Property can be held jointly in two ways. The technical legal terms for these two methods are:-
Tenants in Common
Indentifying the manner in which any joint property is held is most important when it comes to Will preparation. The reason for this is that if property is held as Joint Tenants then the testator’s share will pass outside the Will by survivorship on the testator’s death. So, if a testator’s instructions are to make a gift of his share of property held by him as a Joint Tenant then the solicitor is under a duty to advise him to sever the Joint Tenancy. By severing the Joint Tenancy (which can be done by serving a Notice of Severance on the other Joint Tenant) the property will then be held as Tenants in Common and the testator will be free to leave his share in his Will to a beneficiary of his choosing.
If a solicitor fails to consider this and does not advise on the need for severance then the testator’s share will pass automatically to the surviving Joint Tenant. The disappointed beneficiary who loses out will be entitled to claim their loss from the negligent solicitor who prepared the will.
So, if you have suffered loss as a result of solicitors negligent or a negligently drafted will then give our specialist professional negligence solicitors a call.