WillsWhen Things Could Go Wrong, Part 1

8 January 2021by Amy McMillan0
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There are several cases which show that disappointed beneficiaries can recover damages in negligence for failings or delays in the preparation of wills. Whilst many of the cases refer to solicitors, the same principle should be applied by all practitioners involved in the preparation of wills. There is an exception to the rule that a practitioner’s duty of care is not only to the testator but can be very extensive to others who may be involved. The question is, how far are the courts now prepared to go?

Throughout the year we will be looking at several cases surrounding this issue, providing a brief overview. Our aim is to look at what areas are likely to cause issues so that we can create an awareness to limit any liability by using the relevant case law.

Those involved in the will preparation process have a general duty to deal with it, with reasonable care and skill. Should there be a failure to do so, it will normally give rise to claim based on negligence.

The word ‘negligence’ is alarming but to reassure you, the benefit of using WillPack is that we are here to advise you throughout with full technical advice and to peruse the instructions which you have taken. There could be times where we contact you for further information regarding an instruction but please do not be concerned,  this is simply to ensure all points have been covered and in turn help to reduce any risk.

The first case we will be looking at is: Ross v Caunters [1980].

Facts

In this case a beneficiary to a will launched a claim against the firm of solicitors for failing to advise the testator that having a party witness the will who had an interest in the will (or be married to a beneficiary) would invalidate such interest. Section 15 of the Wills Act 1837 provides that where a beneficiary or a spouse of a beneficiary attested a will, the gift to that beneficiary was void.

The solicitors in question prepared a will and sent it to the testator for execution without guidance or instructions. One of the witnesses to the will was the spouse of a residuary beneficiary.

Issue

As the solicitors had not advised the testator of the basic rules concerning witnesses, it meant that the duty of care which was owed to the testator was breached. However, under the decision you will see that the duty of care was extended.

Decision

The beneficiaries obtained a successful judgment. The solicitors admitted that they had been negligent by not advising the testator of the rule, but they contended that the duty of care which they had was with the testator only and this did not extend to any beneficiary.

Based on this case, the beneficiary claimed for damages against the solicitors due to the loss of the entitlements which was due to be received under the will.

This is a case which showed a change from the right of Privity of Contract which recognised a duty of care is also owed to the beneficiaries and not just to the testator. Meaning that those involved in will preparation need to ensure that the testator’s instructions are properly implemented to constitute a valid will, whilst also considering all those who stand to benefit under the will as such duty of care is extended.

As a result, it means that the Privity of Contract does not prevent an intended beneficiary from taking legal action in order to recover any losses that they have suffered as a result of the failures highlighted, even though there had been no contractual relationship between the intended beneficiaries and the solicitor.

Comments

It must be remembered that a duty of care can be extended to those beyond the testator.

Today, there is more cause for an attention to detail due to an increase in client wealth as well as an awareness of the right to make claims against estates where the courts have been able to find negligence as a cause of action for damages.

Where it is not possible for the WillPack Partner to attend the will attestation in person, full signing guidance together with signing instructions must be sent to the testator and this must also include those who cannot act as witnesses. Upon the will being attested the will must be checked by the WillPack Partner to ensure that there are no issues, and it is a valid will. WillPack supply copies of full signing guidance with all documents issued, this can be passed onto your clients or the information used to refer to in your own documentation.

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