Negligent Delay In Drafting a Will
The consequences of delay in drafting a will
Negligent delay in drafting a will is one of the most common causes of solicitors negligence claims relating to wills. The landmark case of White v Jones was itself an instance of solicitors’ delay in drafting a will.
If a testator dies before the solicitor has drafted the will (or arranged for the will to be executed) then their testamentary dispositions will not take effect. As a result the intended beneficiaries will miss out. The consequences of a solicitor's delay can therefore be far reaching.
Not all cases of delay will give rise to a negligence claim against the solicitor. In order for a negligence claim to succeed it will be necessary to demonstrate that the period of delay in drafting a will was unreasonable. The facts of each individual case are therefore likely to be relevant. We need to consider the age and health of the testator as well as the specific period of delay. You may wish to take advantage of our FREE professional negligence claim assessment service. We will consider the particular circumstances of your claim and tell you whether it is likely to be one that has reasonable prospects of success, or is at least worthy of further investigation.
Generally speaking, where a client is old or seriously ill the law will expect a solicitor to act with more speed and diligence than if the testator is young and in good health. If the testator has a critical illness and there is an imminent expectation of death then the solicitor will be obliged to act quickly. If necessary the solicitor should draw up a will or codicil by hand for immediate execution.
Delay can arise both in making arrangements for the solicitor to see the client to take instructions to prepare a will, and subsequently delay in the solicitor then presenting the draft will for signing and execution.
A common scenario in solicitors’ negligence claims is where the solicitor cancels an appointment and fails to reschedule it within a reasonable period of time. Solicitors must take great care, especially when the client is elderly or unwell and the solicitor fails to enquire about his client’s state of health when making a cancellation.