All Will writers have a duty to ensure any legal Will that they draft is correct and demonstrates what the person who is making the will has instructed.
A duty of care is owed to the person making the will and also the beneficiaries who they have named under the terms of the will. There are a number of factors which can lead to a professional negligence claim in the preparation of wills.
If a delay is occasioned which results in a testator passing away before a will is drafted then this can be classed as negligent. It is important that if will instructions are taken by a professional, the will should in any case be prepared in a time efficient manner. This is even more important if it is a “death bed will” or if the testator is very poorly. This can mean that sometimes a professional will take instructions in a morning, draft the will and return to the person making the will that afternoon.
This is demonstrated well in the case of White v Jones. In this case a father had quarrelled with his two daughters, and executed a Will cutting them out of his estate. He was then reconciled with his daughters. On 17 July 1986 the defendant firm of solicitors received a letter from the testator asking them to prepare a new Will to include legacies of £9,000 each to his daughters. The testator died on 14 September 1986, without the new Will having been put in place (59 days after receipt of the letter of instruction). The defendant firm of solicitors were guilty of negligent delay.
The above concept also applies to chasing execution of the will. It is normal practice for a professional to take instructions at an initial appointment, draft a will to send to the client for checking and then to make a further appointment for the approved draft document to be prepared for signing (or execution). Sometimes in practice client’s do not always make the second appointment straight away or may forget to make the appointment. It is therefore very important that the professional continues to chase the person who is making the will to ensure they continue to contact the client and do not let the file “go to sleep”.
This was demonstrated in the case of Atkins v Dunn and Baker (A Firm): CA 19 Feb 2004. In this case the father left a will leaving everything to his daughter, but he had then got married. He instructed his solicitors to prepare a will to revive the gift to her (as his initial will was revoked by the act of marriage).
They sent him a draft but did not chase it when it was not approved. It was agreed that the claimant was owed a duty of care.
However, it was recorded that there was no duty further to chase a client who may not have wished to take the matter any further. It was held there may not always be a duty to chase up a client. This client was known to be meticulous, and his failure to reply seen properly as choosing not to go ahead. Therefore the daughters claim failed.
A professional ideally should chase for a response and if there is no contact from a client, a final letter should be sent setting out the implications of the will not being signed and the fact it remains invalid. A professional should make sure the client has been fully advised in this respect.
If the will is not going to be signed in the presence of a professional (ie at the solicitors office) and the will is going to be sent to the testator to sign, very clear instructions should be given. The process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask expressly for it. It is not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but can also be negligent.
The above also applies when the Will is returned to the solicitor once signed. The professional is under a duty to ensure that the will was executed properly ie signed by the testator and properly witnessed before archiving the document. If there is an issue and this goes unnoticed it can be negligent.
Sometimes a testators instructions can be misconstrued or the will does not reflect what the person wanted through being badly drafted. The case is that a lay person who consults with a professional is not necessarily going to be familiar with “legal jargon” or complex legal documents. It is the duty of the professional to properly go through each and every clause of the will and explain what it does and what it means. A note should be kept recording that the will was read over and explained to the testator and that the testator confirmed it was correct. If a will is found to not match with what the recorded wishes of the testator were by a professional missing something out or drafting incorrectly then this can be negligent.