Making a Will is an important decision and people rely on the person drafting their Will to make sure it adequately reflects their wishes. Usually, a problem with a Will is usually not discovered until after a person has died. This can leave beneficiaries with less inheritance than they were expecting, or sometimes nothing at all.
Mistakes can also happen after death when an estate is being administered. Incorrectly administered estates can lead to long delays in completing the administration process or less money to be distributed at the end.
Sadly, negligently drafted Wills are surprisingly common. Fortunately, there are ways to make things right for beneficiaries and hold the firm responsible to account. One of these is a claim in Professional Negligence.
What is Professional Negligence?
Professional negligence occurs where a professional firm or person has a duty to carry out work with reasonable care and skill but fail to do so. Where this breach of duty causes financial losses, there may be a remedy of damages available. When a professional person undertakes to draft a Will, they are assuming a duty of responsibility towards not just the person making the Will, but also ‘foreseeable beneficiaries’.
To succeed in a professional negligence claim, you generally need to show four things:
- Duty: The professional owed you a duty to act with reasonable care and skill. In Will cases, foreseeable beneficiaries can fall within this duty. A professional who drafts a Will assumes a duty of responsibility to the testator and foreseeable beneficiaries.
- Breach: The professional fell below the standard of a reasonably competent practitioner. Examples include invalid execution or failing to follow instructions. Errors such as invalid execution or failure to carry out instructions are cited examples of negligence in Will drafting.
- Causation: The mistake caused the loss. You must link the error to the financial shortfall.
- Loss: You or the estate suffered financial loss. Where a breach of duty causes financial losses, a remedy by way of damages may be available.
What sort of errors can constitute negligence in Will writing?
There are many different problems that can arise when a Will is drafted negligently, often it will depend on the wording of the Will or nature of advice given and the circumstances of the deceased person’s estate.
Common errors include:
- Drafting errors such as misnaming beneficiaries or incorrectly describing assets
- Invalid execution – where a Will is not signed or witnessed correctly
- Failure to carry out the instructions of the person making the Will
- Unreasonable delays
- Negligent tax advice
- Failure to assess the mental capacity of the person making the Will
If any of these errors have caused a beneficiary a financial loss, they may be able to claim against the firm who drafted the Will.
What sort of errors can constitute negligence in the administration of estates?
Every estate is different, and the negligent administration will depend on the value and type of assets involved.
Common errors include:
- Tax mismanagement leading to over or under paid tax.
- Failure to pay debts or gather in assets
- Mishandling estate assets such as selling items at a significant undervalue
- Missed deadlines such as registering documentation or court deadlines
- Unreasonable delays
How long do I have to make a claim?
Negligence claims are subject to strict time limited (limitation periods). Generally, this is six years after the negligent act. However, as many people make their Will years before they pass away, Section 14A of the Limitation Act 1980 allows a period of 3 years after the loss is incurred, subject to a ‘long stop date’ of 15 years after the negligent act. This means that a claim must be made within 3 years of the death of person who made the Will but no more than 15 years after the Will was made.
How will the claim be resolved?
Negligence claims can be resolved in a number of ways.
- Formal negotiation (called the Pre-Action Protocol)
- Mediation
- Litigation (Court Proceedings)
Possible outcomes and remedies
If your claim succeeds, the usual remedy is financial compensation to put you, as far as money can, in the position you would have been in without the negligence. Other outcomes can include settlement terms on timing of payment or interest.
If you think a loved one may have received negligent advice when making their Will, or if an estate has been mishandled, we can help you understand your options and the likely value of any claim. Please get in touch to discuss your options.
Contact: Emma Walker e: Emma.Walker@DaviesandPartners.com
