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Will drafting and professional negligence

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Posted on 07 August 2017

Drafting a will is something that almost everybody will consider in their lifetime. It is likely that if you have not already engaged a solicitor to draft a will, you will do so at the appropriate time in the future. You expect that a solicitor would conduct your meeting and ultimately draft your will with a standard of care and skill which can reasonably be expected of a solicitor in that area of law.

But what happens if you believe that your solicitor has not drafted your will properly or you discover that a solicitor has not drafted someone else’s will properly?

Complaints procedure

Most legal firms have a person responsible, usually a senior member of the firm, who deals with and is responsible for resolving client complaints. If you are not happy with the will that a solicitor has drafted for you, or you do not think that it actions your intentions, you should initially speak with the solicitor who dealt with your matter. If the matter cannot be resolved by the solicitor who drafted your will, follow the firm’s formal complaints procedure which usually will put you in contact with the complaints partner. As a result and following an investigation the firm may agree to undertake further work on your will at a reduced rate or free of charge should there be justification for this.

Legal Ombudsman

If you are not satisfied after following the firm’s formal complaints procedure you could approach the Legal Ombudsman. The Legal Ombudsman is a free, independent and impartial scheme set up to resolve legal service disputes. You can complain to the Legal Ombudsman when you have experienced poor service from a solicitor or are dissatisfied with how a solicitor handled or has undertaken your work. If a solicitor has not drafted your will properly and has not managed to resolve your complaint, the Legal Ombudsman may provide the resolution that you are seeking. However, it should be noted that the Ombudsman primarily deals with issues with service and will not address issues relating to any acts or omissions of a solicitor which may have led to you suffering damage and loss.

Court action

In order to have a viable professional negligence claim, you need to be able to prove that a solicitor was negligent and that this negligence was the cause of financial loss or extra expense. With the vast majority of professional negligence cases involving the drafting of your own will, there will rarely be any substantial financial loss as the will document will not have come into effect and can, therefore, be amended before any loss is incurred. If you are considering bringing a professional negligence claim against a solicitor who drafted someone else’s will that has now passed away, the elements of a viable case will need to be scrutinised.

Proving negligence

In order to establish a claim for professional negligence, you must prove that the solicitor acted in such a way that no reasonable competent practitioner in the same area would have done; or that they failed to act in a way that a reasonably competent solicitor in that area would have done.

Proving loss

It is important to note that it is not enough to just show negligence in order to have a viable claim. , You must show that you have suffered a loss or an extra expense as a direct result of the negligent act and / or omission and that the loss or extra expense would not otherwise have happened. If you are unable to establish a loss or an extra expense, there will be nothing for the court to compensate you for even if it can be shown that the solicitor was at fault in some way.

Proving the claim

A sensible starting place for proving negligence in will drafting is to request and obtain the will drafting solicitor’s file of papers relating to the deceased’s will. The file holds all papers in relation to the circumstances and preparation of the will of the deceased including a note of the deceased’s instructions which were taken and the advice that the solicitor gave. If the financial loss is in relation to land or a property left in the deceased’s estate, a land agent, surveyor or estate agent may be required to produce a valuation of the asset. If a business or complex farm was in the estate and has contributed to the loss suffered, a forensic accountant may be required to review the accounts and produce a report as to profitability, etc. If the estate comprises of antiques, a valuer may be required to comment on the current value of the antique. All experts are engaged to assist the court with matters that fall within the expert’s expertise and to assist in calculating the loss suffered.

Mitigation and alternative claims

Before launching into a professional negligence claim, it must be considered as to whether a claim in rectification may be appropriate to resolve the issue at hand. Instead of pursuing the solicitor who drafted the Will for negligence you are expected to mitigate your loss; this is likely to be by considering whether a Deed of Variation to the will would enable the issue to be resolved. A Deed of Variation is a formal document which by consent of all the parties involved varies the terms of the will. For example, if there was a simple drafting or clerical error in the will, a variation to the will would cost far less to implement than suing the will drafting solicitor and therefore would likely be the most appropriate action to take. Please contact us to discuss the best cause of action and merits of your claim.

Next steps

Please read our additional articles regarding common issues relating to the drafting of wills.

If you think that you have suffered a financial loss directly as a result from a solicitor not drafting somebody’s will correctly, please contact us to review and consider your evidence. When enquiring, please include the following information:

  1. The name of the person who has died leaving a will and their connection with you;
  2. The name and address of the solicitor who drafted the will;
  3. A copy of the will if you have this or a brief overview of what the will does and the date of the will;
  4. Why you think that the solicitor was negligent including what you expected the will to do and why you thought this; and
  5. The value of the loss you think that you have suffered as a result of the perceived negligence.

We will then be able to review the information received and assess whether or not your potential claim is worth pursuing.

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