Claims seeking the interpretation of unclear wills may no longer be so difficult and should be carefully considered before a claim for professional negligence is issued.
Historically the court has taken a strict approach to the construction of wills and whether they are valid. This has made claims asking the court to give an uncertain or incorrect will a particular meaning difficult and meant that the outcome of such claims is often uncertain. In some cases there has been concern that a testator’s wishes have not been implemented solely on the basis of a technical interpretation of a will.
The court’s now appear to be taking a more pragmatic approach in seeking to uphold the wishes of the deceased. In the case of Marley v Rawlings (2014) the Supreme Court decided that principles relating to the interpretation of contracts should also apply to wills. This was the case where a husband and wife mistakenly signed each other’s wills, causing them to be potentially invalid. The court confirmed that the wills could be interpreted (as a contract could be) as having been signed by the correct people. This represented a significant move away from the strict rules in relation to the execution of wills and the decision in Marley v Rawlings is now starting to be applied more broadly.
In the case of Brooke v Purton  EWHC 547 a wealthy gentleman took advice from a solicitor in order to ensure that the best tax saving possible was secured for his estate. Unfortunately the solicitor did not prepare the document properly and the entire estate was subject to tax.
The Executor of the will applied to court asking for the will to be corrected to make the tax savings that the deceased intended. Applying Marley v Rawlings the court said that the same principle which would apply to the interpretation of a contract should apply i.e. the will was to be interpreted to give effect to the tax savings that the deceased had envisaged.
At first blush the most obvious claim may have been considered to be a claim against the solicitor in negligence due to the principle that a party is not required to embark upon costly or uncertain litigation. However, given that courts seem more willing to interpret testator’s intentions broadly it now appears that applications for interpretation and/or rectification of wills are no longer as risky or uncertain as they used to be. As a result careful consideration will need to be given to pursuing such claims before professional negligence proceedings are issued, in order to ensure that all reasonable steps to mitigate loss are taken.