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Professional Negligence (Will Drafting)

Also known as: Solicitor Negligence, Legal Malpractice, Will Drafting Errors

Definition

Professional negligence in will drafting occurs when a solicitor or will writer breaches their duty of care through errors, omissions, or delays that cause financial loss to the testator, their estate, or intended beneficiaries.

This establishes when legal professionals can be held accountable for mistakes that deprive people of their rightful inheritance.

What Does Professional Negligence (Will Drafting) Mean?

Professional negligence in will drafting occurs when a solicitor or will writer fails to meet the standard of care expected of a reasonably competent professional, causing financial loss. To establish negligence, four elements must be proven: (1) a duty of care existed, (2) that duty was breached, (3) the breach caused the loss, and (4) quantifiable damages resulted. The landmark case White v Jones [1995] 2 AC 207 established that solicitors owe a duty of care not only to their client (the testator) but also to intended beneficiaries. This extends liability beyond the normal contractual relationship because once the testator dies, they cannot sue for their own losses—creating a legal gap that would leave beneficiaries without remedy.

Common examples include execution errors (allowing a beneficiary to witness the will, invalidating their gift under Section 15 of the Wills Act 1837), substantive drafting mistakes (unclear wording or wrong beneficiaries), unreasonable delays (the testator dies before execution), and failure to advise properly (not advising on inheritance tax or severing joint tenancies). Margaret, aged 82, instructed her solicitor to change her will to leave her £650,000 estate equally between her son Robert and daughter Linda. The solicitor delayed for two months. Margaret died before the new will was executed, and Linda lost her intended £325,000 inheritance. Despite not being the solicitor's client, Linda can sue for professional negligence under White v Jones.

Intended beneficiaries who lose out have a right to claim under White v Jones [1995]. The limitation period is typically six years from the negligent act—for will drafting, this usually runs from the testator's death when the loss crystallizes. If negligence is discovered later, you may have three years from discovery, subject to a 15-year absolute limit. All solicitors must carry Professional Indemnity Insurance under SRA rules, so successful claims are paid by insurers. Professional negligence is distinct from will rectification and will contests, though remedies can overlap. Given the complexity of proving causation, seek specialist legal advice immediately if you suspect negligence.

Common Questions

"Can beneficiaries sue a solicitor who made mistakes in drafting a will?" Yes. White v Jones [1995] established that solicitors owe a duty of care to intended beneficiaries who lose out due to will drafting errors, even though they weren't the client. You must prove the breach caused your financial loss.

"What are common examples of professional negligence in will drafting?" Common examples include failing to execute the will before death, invalid drafting, poor inheritance tax advice, incorrect witnessing, omitting beneficiaries, and failing to advise on severing joint tenancies.

"How long do I have to make a professional negligence claim about a will?" Typically six years from the negligent act, usually running from the testator's death when loss crystallizes. If discovered later, three years from discovery may apply. Seek legal advice promptly as time limits are strict.

Common Misconceptions

Myth: Only the person who hired the solicitor can sue them for mistakes—beneficiaries have no rights.

Reality: Intended beneficiaries can sue for will drafting negligence despite not being the client. White v Jones [1995] created this exception because once the testator dies, they can't sue for their losses, leaving beneficiaries without remedy otherwise.

Myth: Any mistake a solicitor makes is professional negligence I can claim for.

Reality: Not all mistakes are actionable. You must prove four elements: duty of care, breach of professional standard, causation, and quantifiable damages. Minor errors causing no loss or judgment calls within reasonable discretion are not negligence.

  • Will Validity: Some negligence makes wills invalid, though not all invalid wills result from negligence.
  • Invalid Will: Professional negligence can cause invalidity through witnessing errors or formality failures.
  • Solicitor Will: Solicitors provide professional standards and insurance protection, though negligence risk remains.
  • Professional Liability: Will drafting negligence is a specific type of professional liability.
  • Will Contest: Contests challenge validity; negligence claims seek compensation from the drafter—separate remedies.

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.