Beneficiaries of a Will claiming against solicitors

Introduction

If there is no Will, only certain classes of people will inherit under the rules of intestacy and in a given order. Typically this will not cover co-habitees (no matter long the relationship), friends, carers or charities.

It is always advisable to have a Will prepared which can detail exactly who you want to benefit (or not benefit) and to what extent.

However, what happens when a draft Will is never executed or the solicitor fails to take steps to protect assets in an estate, and the Will maker dies; do the disappointed beneficiaries have any recourse against the legal advisors?

Professional Negligence Claims Generally

Professional negligence claims are founded in contractual or tort based relationships between the client (Will maker) and the solicitor instructed – this gives rise to the first element of any professional negligence claim; a duty of care.

It will be unusual for third parties to be owed a duty of care outside of this personal relationship.

The very famous exception to this is the classic case of Dongahue v Stevenson (1932) where a manufacturer of ginger beer was found to owe a duty of care to a customer who had purchased this from a café.

Exceptions – Beneficiaries

Another exception to this general rule is that potential disappointed beneficiaries may have a claim against solicitors for professional negligence, although this position only came about in 1980 (with the case of Ross v Caunters).

The major case which encapsulates this rule is White v Jones (1994) where the House of Lords held that there was negligence due a delay of about 5 weeks (mostly due to the solicitors) which meant that a draft Will was not executed, and that compensation was accordingly due to the potential beneficiaries who lost out (the daughters in this case).

Esterhuizen v Allied Dunbar Insurance Plc [1998] was a case involving will writers (rather than actual solicitors) but this made no difference to the imposition of liability. It extended the duty to not only drafting of the Will but execution of the Will too. The court held that the will writer had failed to take reasonable steps to assist the deceased in proper execution of the Will, leading to the Will being invalid as it was only executed by one person (instead of the requisite two).

However, it is clear from the case of Carr-Glynn V. Frearsons (1998) that there can only be a breach of duty to the disappointed beneficiary if there was a breach of duty to the Will maker:

“The duty owed by the solicitors to the specific legatee is not a duty to take care to ensure that the specific legatee receives his legacy. It is a duty to take care to ensure that effect is given to the testators intentions.”

This case also shows how extensive the duty of care by a solicitor can be. The main asset was a property which was held as joint tenants by the deceased and her nephew. The solicitors were instructed to draft a Will leaving her share in the property to her niece. The solicitors advised the deceased the need to sever the tenancy (given that under a joint tenancy, her share would automatically be inherited by the joint owner, her nephew). The Court of Appeal decided that the solicitors were negligent for failing to do more to ensure that the terms of the Will were not frustrated, even though they were waiting for further instructions from the deceased, who was not sure how she held the property so needed to check the title deeds herself.

There can be a defence to solicitors, where fault can be laid at the doors of the Will maker, as happened in Atkins v Dunn & Baker [2004]. A draft Will was prepared and sent to the Will maker in 1997. He did not take matters any further and subsequently died in 2000. The court found that the “ball was in the client’s court” and the solicitors were not negligent even for failing to chase up the client for instructions.

Contrast this to the fact that in administration of an estate, a solicitor owes no duty of care to advise beneficiaries of their rights or even to notify them of their entitlement (unless authorised by the executor to do so). The duty of care is owed solely to the executor.

Concluding comments

Solicitors need to take care and have in mind that when they are instructed to draft Wills, that a duty of care is not only owed to their clients (the Will make), but any potential beneficiary who could lose out if something went wrong with the drafting or execution of that Will.

Disappointed beneficiaries will be reassured that if their loved ones would have had a claim against a solicitor for negligence, not all is lost if that they pass away.

The Law Society confirms that residuary beneficiaries can take complaints to the Legal Ombudsman and these should be treated as if from the client themselves.

This is re-iterated by the report, Third Party Complaints, issued by the Legal Service Consumer Panel in June 2012 but they clarify that “while the Legal Ombudsman can provide redress to beneficiaries who have suffered detriment due to poor service by a lawyer administering an estate, it cannot currently act should those same beneficiaries suffer detriment, notably a loss of inheritance, due to a defective will”, as that must surely be the remit of the courts.