How beneficiaries under a Will can lose out due to solicitor negligence

Although there is no contractual relationship between solicitor and beneficiaries, solicitors drafting Wills should be able to foresee that if the Will contains errors, it could harm intended beneficiaries.

Therefore, solicitors owe a duty of care to all parties under a will, including beneficiaries.

The main consequence of solicitors drafting Wills without reasonable care and skill is that the beneficiaries lose out as the Will does not reflect the wishes of the deceased.

How can solicitors make mistakes when drafting Wills?

Typically, solicitors can encounter mistakes in the following areas:

• drafting of the Will e.g., spelling mistakes and signatures;
• drafting a Will that does not reflects the testators’ intentions;
• the amount the beneficiary should inherit;
• undue delay in preparing Wills e.g. a client in poor health or advanced age instructs a solicitor to draft/update a Will and dies before the will is prepared due to undue delay; and
• failing to advise on circumstances that the Will would become invalid e.g. marriage.

What can beneficiaries do if they have lost out as a result of solicitor negligence?

The landmark ruling on White V Jones [1985] established that disappointed beneficiaries who have suffered a loss as a result of solicitor negligence can bring a claim for professional negligence.

In the case, the solicitor failed to amend the Will before the testator’s death and as a result the beneficiaries suffered loss.

The beneficiaries claim succeeded in recovering the money they would have received had the solicitor’s negligence not occurred.

The incidence of liability has often been reduced to the following:

1. The solicitor can only be as liable to the beneficiary as they would have been to the testator. This means that the solicitor only has to give effect to the testator’s intentions and is not responsible for ensuring that those intentions are followed through.
2. A solicitor can only be liable if it is proved that the Will does not match the testator’s intentions.
3. A solicitor cannot be liable if the beneficiary would not have benefited from the Will e.g., if the testator intended to make the gift elsewhere.
4. Solicitors cannot owe a duty to a disappointed beneficiary where the solicitor’s duty to the testator (their client) conflicts with the duty owed the disappointed beneficiary.

It is important to note however that the question of liability is not limited to the above situations and cases will need to be considered in isolation to ascertain if liability can be established.

In addition, the question of how compensation will be calculated for beneficiaries who have suffered a loss will apply to the facts of the specific case.

Limitation

If the solicitor’s negligence is discovered prior to the testator’s death, then beneficiaries will not be able to bring a claim against the solicitor as the Will can be changed at any point and therefore the beneficiaries will not have suffered any loss.

It is therefore usually the case that limitation will run from the date of the deceased’s death.

It will not be possible to bring a claim for professional negligence once the limitation period has expired.

If you feel you have suffered loss as a result of your solicitors negligence, we urge you to seek legal advice without delay.

The following time frames apply to the below professional negligence cases.

Six year limitation period

Generally, to bring a claim against a professional for breach of contract, a Claimant has six years from the date of the original professional’s breach of contract.

To bring a claim against a Professional for negligence, a Claimant has six years from the date that the Professional’s breach of duty led to the Claimant suffering a loss.

Calculating when the breach of contract occurred or when the loss arising from the breach of duty occurred is not necessarily simple, therefore it is important to seek legal advice as soon as possible.

Potential three year limitation period extension

In negligence claims, a Claimant usually also has the benefit of a three-year limitation period.

This period of three years starts from the date the Claimant acquired knowledge relevant to their original claim which should have prompted the Claimant to make further reasonable enquiries.

Determining whether a Claimant has acquired the appropriate relevant knowledge can be very difficult.

In many cases, the three-year period will expire before the end of the six year period referred to above.

This is because the Claimant acquires the appropriate knowledge relevant to their original claim very soon after the original claim concludes.

However, it is possible that the Claimant acquires the knowledge relevant to the original claim some years later, and in those circumstances, the three year period may act as an extension beyond the initial 6 year limitation period.

This only applies in certain limited circumstances.

You should not rely on it without taking advice.

Even if it does apply, the absolute maximum amount of time a Claimant has to bring a claim is 15 years from the date of the original professional’s breach of duty, and again, calculating this date is not necessarily simple.