Professional Negligence in Wills Solicitors

When a solicitor, will writer or other professional makes an error when preparing a will or administering an estate, beneficiaries can suffer significant financial loss. In these cases, a professional negligence claim can provide a way to recover losses caused by negligent advice, drafting errors or failures during estate administration.

At JMW, we act for beneficiaries, executors and personal representatives affected by negligent will drafting or probate work.

We also act for disappointed beneficiaries, where a solicitor's error stopped the deceased's intentions from taking effect.

Our Private Wealth Disputes team pairs specialist knowledge of wills and estate disputes with the litigation experience these claims need.

To speak to us about professional negligence in wills, call 0345 872 6666 or complete our online enquiry form.

How JMW Can Help

Our specialist Private Wealth Disputes solicitors have extensive experience handling disputes involving wills, probate and deceased estates.

We understand how professional negligence can affect the validity or operation of a will, the administration of an estate and the inheritance intended for beneficiaries. This allows us to identify what the professional should have done, investigate how their failure affected the position and assess the financial loss that followed.

Our Private Wealth Disputes team advises on claims involving:

• Negligent drafting that fails to reflect the testator’s instructions or creates uncertainty over the deceased’s intentions
• Failure to prepare or execute a new will promptly where there is a clear need for urgency
• Execution errors that result in an invalid will
• Failure to address concerns about testamentary capacity
• Negligent estate planning advice, including advice affecting Inheritance Tax or the intended distribution of assets
• Probate and estate administration errors, including incorrect distributions and failures involving estate assets
• Claims by intended beneficiaries and disappointed beneficiaries who have lost an inheritance because of a solicitor’s negligence

We review the relevant wills, the professional’s file, correspondence, estate documents and other material facts before advising on duty, breach, causation and loss.

Where there are grounds to proceed, we handle the Pre-Action Protocol for Professional Negligence, which sets out the steps parties should usually follow before court proceedings begin. The Protocol encourages the early exchange of information and evidence, allows you to narrow the issues in dispute and gives both parties an opportunity to explore resolutions without going to court.

We handle the required correspondence and negotiations on your behalf, including mediation where appropriate.

Following the Pre-Action Protocol does not prevent you from taking the matter to court. We reserve the right to issue proceedings where an agreement cannot be reached or where court action is necessary to protect your interests.

Meet Our Team

Our Private Wealth Disputes team combines specialist expertise in wills, probate and estate disputes with the litigation experience needed to pursue professional negligence claims effectively.

Our Accreditations

Our Private Wealth Disputes team includes solicitors recognised by leading professional directories and specialist organisations, including:

• The Legal 500: JMW is ranked as a Tier 1 firm for contentious trusts and probate in the North West.
• Chambers and Partners High Net Worth Firms: JMW is ranked the highest possible band 1 rating for Private Wealth Disputes.
• The Association of Contentious Trusts and Probate Specialists (ACTAPS): members specialise in resolving disputes involving wills, trusts and estates.
• Society of Trusts and Estate Practitioners (STEP): membership of STEP demonstrates our specialist knowledge and commitment to high professional standards in trusts and estates.
• Special Interest Group for Contentious Trusts and Estates: members share specialist knowledge and promote best practice in resolving contentious trust and estate disputes, including trustee litigation and matters with an international dimension.

What Is Professional Negligence in Wills?

Professional negligence in wills occurs when a solicitor, will writer or another professional who owes a duty of care fails to provide the standard of service reasonably expected of them and this causes financial loss.

An error does not automatically amount to negligence. A professional negligence claim requires evidence that the professional owed a duty, breached that duty and caused a recoverable loss. This could include a lost inheritance, unnecessary liabilities, additional legal costs or estate assets passing in a way that does not reflect the deceased’s intentions.

What Types of Professional Negligence Arise in Wills and Probate?

Professional negligence may occur when a will is prepared and during the later administration of a deceased’s estate.

A professional could also act negligently by failing to prepare a will or amendment within a reasonable period. This becomes particularly important where the solicitor or will writer knows that a new will needs to be completed urgently, including where a testator is terminally ill.

Your ability to make a negligence claim will depend on whether the professional owed you a duty of care, fell below the standard reasonably expected of them, and caused you or the estate financial loss as a result.

Who Can Make a Professional Negligence Claim?

The person who instructed the professional may have a claim if they received negligent advice and suffered financial loss.

After the testator’s death, executors or personal representatives may also be able to pursue a professional negligence claim on behalf of the deceased’s estate where negligence caused the estate to lose assets or incur additional liabilities.

Intended beneficiaries who received less than the deceased intended, as well as disappointed beneficiaries who lost an inheritance entirely because of a professional’s negligence, may also be able to explore a claim for professional negligence in some circumstances.

The first step is to get in touch with our team. We will assess who suffered the relevant financial loss, who was owed a duty and the legal basis on which a claim can proceed.

Can a Beneficiary Claim Against the Solicitor Who Drafted the Will?

In some circumstances, yes.

The leading case of White v Jones established that a solicitor’s duty extends beyond the person who instructed them, to also cover intended beneficiaries who lose an inheritance because of negligent will preparation.

In White v Jones, a testator instructed a solicitor to prepare a new will that would benefit his daughters. The solicitor did not prepare the will before the testator’s death, meaning the daughters did not receive the inheritance their father intended them to have. The court found that the solicitor could owe a duty of care to the intended beneficiaries even though they were not the solicitor’s clients.

This principle helps prevent a situation where a professional’s negligence causes a lost inheritance but neither the deceased nor the intended beneficiary has an effective remedy.

However, White v Jones does not give every disappointed beneficiary an automatic right to make a professional negligence claim. These cases are highly fact-specific, and establishing whether a solicitor’s duty extends to an intended beneficiary requires careful consideration of the instructions given, the professional’s actions and the reason the inheritance was lost.

Our specialist Private Wealth Disputes solicitors assess these issues in detail to determine whether you have grounds for a claim and advise on the most effective way to proceed.

What Do You Need to Prove in a Professional Negligence Claim?

A professional negligence claim normally depends on three connected issues:

1. Duty and breach: the professional owed a duty of care and their advice or work fell below the standard reasonably expected.
2. Causation: the professional’s negligence caused the outcome complained of. This usually requires consideration of what would probably have happened if the professional had acted correctly.
3. Financial loss: the claimant suffered a recoverable loss as a result, such as a lost inheritance, reduced estate assets or additional costs and liabilities.

It is therefore not enough to identify bad advice or an error in isolation. The claimant must usually show that the negligence made a material financial difference to their position.

What Evidence Can Support a Wills Negligence Claim?

The evidence required will depend on the type of negligence involved and what happened as a result. Relevant evidence could includes:

• The solicitor’s or will writer’s professional file
• Attendance notes recording the testator’s instructions
• The final will and any earlier or draft wills
• Letters, emails and other correspondence recording the deceased’s intentions
• Estate accounts and probate documents
• Bank statements and other financial records
• Tax and estate planning documents
• Medical records where mental capacity or testamentary capacity is relevant
• Witness evidence from family members, lawyers, accountants or other professional advisers

We use this evidence to determine what the professional was instructed to do, whether their actions fell below the required standard and the financial position that would probably have existed without the negligence.

What is the Process of Making a Professional Negligence Claim?

Professional negligence claims usually follow the Pre-Action Protocol for Professional Negligence, which sets out the steps parties are expected to take before court proceedings begin. The process normally runs as follows.

1. Preliminary notice. Once we consider there are reasonable grounds for a claim, we write to the professional to put them on notice. This letter identifies the parties, outlines your grievance and, where possible, gives a general indication of the value of the claim. It also asks the professional to notify their professional indemnity insurers straight away. They should acknowledge it in writing within 21 days, although they are not expected to respond in detail at this stage.
2. Investigation and Letter of Claim. We gather and review the evidence, then send a detailed Letter of Claim. This sets out the allegations, a chronological summary of the facts, the legal arguments and the documents we ask the professional to provide. It also explains how the negligence caused your loss and how that loss has been calculated. We will indicate at this point whether we propose mediation or another form of alternative dispute resolution.
3. Letter of Acknowledgment. The professional should acknowledge the Letter of Claim within 21 days of receiving it. If they consider the letter incomplete, they should say so and identify what further information they need.
4. Investigation and response. The professional then has three months from the date of the Letter of Acknowledgment to investigate and reply. Their reply takes the form of a Letter of Response, a Letter of Settlement, or both. A Letter of Response sets out which allegations they accept and which they dispute, and why. A Letter of Settlement makes proposals for resolving the claim. Where a claim is complex, the three months can be extended by agreement, and the professional should raise any difficulty in meeting the deadline before it expires rather than afterwards.
5. Negotiation and alternative dispute resolution. If the claim is not resolved by the response, the parties are expected to consider settling without litigation. This may involve negotiation between solicitors, a settlement meeting or mediation. We will advise on which approach is likely to suit your case and handle the correspondence and negotiations on your behalf. Courts can penalise a party in costs for unreasonably refusing to engage in this stage.
6. Court proceedings. Where the claim cannot be resolved, issuing proceedings may be the only way to bring it to a conclusion, and we will take that step on your behalf. We may also need to issue earlier if a limitation deadline is approaching, because following the protocol does not stop time running. Most claims that are issued still settle before a trial.

Costs and funding are discussed at the outset and reviewed as the claim develops, so you understand the position before each significant decision. If your claim succeeds, we will seek to recover a proportion of your legal costs from the other party, and we will explain what is likely to be recoverable and how that affects the overall outcome.

What Compensation Can Be Claimed?

Depending on the circumstances, a claim may relate to:

• A lost inheritance
• A reduction in the value of an inheritance
• Loss suffered by the deceased’s estate
• Additional tax liabilities
• Costs incurred correcting an error
• Other financial loss caused by negligent drafting or estate administration

Compensation in a professional negligence claim aims to put the claimant in the financial position they would have been in if the negligence had not occurred, so far as the law allows.

The amount that can be claimed will depend on the loss caused by the professional’s negligence rather than the error itself.

What Are the Time Limits for a Professional Negligence Claim?

In many cases, the standard limitation period is six years from the negligent act or omission. However, professional negligence is sometimes discovered later. In those circumstances, the law may provide an additional three years from the date on which the claimant had the required knowledge of the relevant facts.

Different rules can apply depending on the circumstances, so we recommend obtaining advice as soon as you become aware that negligent advice or another professional failure may have caused financial loss.

Time limits apply to professional negligence claims, and the correct deadline depends on the circumstances and legal basis of the claim.

Following the Pre-Action Protocol does not stop the limitation period from running.

How Are Professional Negligence Claims Funded?

Depending on your circumstances, options may include:

• Private funding
• Legal expenses insurance
• Deferred payment arrangements
• A conditional fee agreement in suitable claims

A conditional fee agreement is commonly described as a no win, no fee agreement. Whether this option is available will depend on factors such as the strength and value of the claim and the evidence available.

We will explain the available options and help you identify an approach that is proportionate to the dispute.

We will also discuss legal costs and funding options at the outset, so you understand how your claim can be funded before deciding how to proceed.

Q

Can I claim if a solicitor wrote a will incorrectly?

A

A drafting error may support a professional negligence claim if the solicitor owed the relevant duty, failed to meet the required standard and caused financial loss.

This could include wording that fails to reflect the testator’s instructions or an error that means assets do not pass to the intended beneficiaries.

Q

Can an executor make a professional negligence claim?

A

An executor or other personal representative may be able to pursue a claim on behalf of the deceased’s estate where a professional’s negligence caused financial loss to the estate.

The correct claimant will depend on the duty involved and where the loss was suffered.

Q

Can I claim for negligent probate or estate administration?

A

Yes. Professional negligence can arise during estate administration as well as during the drafting of a will.

Examples may include incorrect distributions, avoidable delays, failure to identify or protect estate assets, or negligent advice that causes the estate or beneficiaries financial loss.

Q

Can I claim if negligent estate planning advice created an unexpected tax liability?

A

Potentially. A professional negligence claim may arise where a solicitor or other adviser provided negligent estate planning advice and this caused an avoidable financial loss.

The claim will depend on what advice should reasonably have been given and what the financial position would have been if the professional had advised correctly.

Q

Is professional negligence the same as contesting a will?

A

No. A professional negligence claim focuses on whether a professional failed to meet the required standard and caused financial loss.

Contesting a will generally involves challenging whether the will itself is valid or should take effect. For example, a will may be challenged because of a lack of testamentary capacity, undue influence or problems with its execution.

The issues can overlap. An execution error could result in an invalid will while also giving beneficiaries or the deceased’s estate grounds to consider a professional negligence claim