Execution of Will Negligence

A solicitor's duty of care in relation to execution of a will

A solicitor’s duty of care doesn’t end with the drafting of the Will. In the case of Esterhuizen v Allied Dunbar the Judge confirmed that the solicitor’s duty extends to assisting their client with the execution of the will.

The term 'execution' relates to the signing of the will by the person who is making it, known in law as the 'testator'. Strict legal requirements must be followed in order for a will to be regarded as validly executed. An error in the execution of a will could result in the will being invalid.

What are the legal requirements for a will to be valid?

The formal requirements which must be observed if a will is to be valid were first set out as long ago as 1837, in the Wills Act.

Section 9 of the Wills Act 1837 states that a will is only valid if :-

  • It is in writing;

  • It is signed by the testator, or at his direction and in his presence;

  • The testator intended that his signature should give effect to the will;

  • The will is made or acknowledged in the presence of two or more witnesses, present at the same time;

  • Each witness attests and signs or acknowledges the signature in the presence of the testator.

The requirements of the Wills Act 1837 are very specific and very strict. Mistakes in the execution of a will are not uncommon and failure to comply with the act will render the Will invalid.

Execution of a will requires particular care

The law has been criticised for being over complicated in relation to execution and in particular the very specific rules governing how a will is witnessed. For instance, people do not always realise that two witnesses are required and that each of those witnesses must be present at the same time when the testator executes the will.

Because execution of a will can be a minefield for the unwary, solicitors have traditionally overseen the process of execution. Indeed, many wills are actually executed in the solicitor's office, with members of the solicitor's staff acting as witnesses. Either that, or the solicitor and their staff will visit the testator at home or in hospital.

The solicitor's duty to supervise execution of a will

The courts have considered the extent of the solicitor's duty to deal with the execution of a will on a number of occasions. In the leading case of Esterhuizen v Allied Dunbar the judge thought it was insufficient for the solicitor merely to leave written instructions with the testator.

However, there is contrasting case law to suggest that the solicitor's duty of care is not absolute and that different circumstances will require different levels of assistance. Factors such as the testator’s age, level of experience, educational background and location are therefore all likely to play a part.

The solicitor's duty after a will has been executed

Once the will has been executed, the solicitor’s duty is still not complete. The solicitor should inspect the executed will, especially if he wasn’t in attendance when execution took place. Indeed, failure to request that the will is returned to the solicitor for checking could itself amount to negligence. Even if the Will appears at first sight to be properly executed, careful detective work can often reveal potential problems. Clues that an alert solicitor should be on the look out for include:

  • Signatures being placed in unusual positions.

  • Geographically diverse addresses for the witnesses.

Solicitor's negligence

In cases where the solicitor doesn’t supervise the execution of the will himself the possibility of negligence arises if he doesn’t give the client clear and accurate instructions on how the will should be executed in his absence.

Solicitor's negligence could also arise if the solicitor fails to check the executed will for errors in execution.

How we can help

We specialise in will negligence, including negligence in relation to the execution of a will.

If you have lost out as a result of a negligent execution of a will and believe the solicitor or will writer was to blame then please call our FREE Legal Helpline 0808 139 1591 or send us an email.