Negligent Will Execution
The solicitor’s duty 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 extendeds to assisting the client with the execution of the Will.
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.
Because execution of a Will can be a minefield for the unwary, solicitors have traditionally overseen the process. Indeed, many Wills are actually executed in the solicitors’ office, with members of the solicitors’ staff acting as the witnesses. Either that, or the solicitor and their staff will visit the testator at home or in hospital.
The extent of the duty to deal with the execution of a Will varies from case to case, but the Judge in Esterhuizen v Allied Dunbar clearly thought it was insufficient for the solicitor merely to leave written instructions with the testator.
In practice, of course, this is not always possible, appropriate or desirable. There is contrasting case law to suggest that the duty 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.
Once 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.
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.
If you have lost out as a result of a defectively executed Will and think that the solicitor or Will writer was to blame then please call our FREE Legal Helpline.