Poorly drafted wills and professional negligence in wills, trusts and estate advice

Poorly drafted wills and negligent advice can lead to disputes, uncertainty and unintended outcomes. Our experienced team advises beneficiaries and executors on claims involving mistakes, unclear terms and professional negligence in wills, trusts and estate planning.

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CONTENTS

Informal wills and the risk of mistakes
Ambiguity, interpretation and rectification of wills
Professional negligence in wills and estate planning
How we can assist
FAQs

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Informal wills and the risk of mistakes

The level of formality required to make a valid will in England and Wales is very low. In general, the Wills Act 1837 simply requires (i) that a will be in writing, (ii) is signed by the person making it with the intention to create a will and (iii) for that signature to be made or acknowledged in the presence of two or more witnesses present at the same time who then sign the will in the testator’s presence.

There are some exceptions and further intricacies, but most people make their will in this way. This level of informality can lead to mistakes, particularly where a person makes their will without the benefit of legal advice from a legal professional.

Mistakes can have serious consequences for the operation of a will. In the most serious cases, a drafting error can lead to the failure of gifts and the deceased’s wishes not being given effect. In other cases, mistakes might lead to more inheritance tax being payable than anticipated.

Ambiguity, interpretation and rectification of wills

As well as obvious mistakes in wills, sometimes their terms can be ambiguous so that it is not clear to the executors and beneficiaries what the deceased wanted.

This can lead to disputes between beneficiaries arguing for different outcomes and uncertainty for executors tasked with administering the estate and distributing assets.

In cases of mistake, the court has the power to rectify wills and, where there is uncertainty about the terms of a will, the court can determine the question to offer certainty to the parties involved.

Professional negligence in wills and estate planning

While it is more common to see mistakes and uncertainty in ‘homemade’ wills, sometimes professionals make mistakes too.

In general, a professional will drafter, be they a solicitor or otherwise, will owe duties to the person making their will but they will also owe duties to the intended beneficiaries of a person’s will.

This is particularly true in cases where a legal professional negligently delays drafting a will and death occurs before it can be executed. In such cases, the disappointed beneficiaries may be able to claim directly against the legal professional in respect of their lost inheritance.

Many people also rely on the advice of solicitors or other professionals in relation to inheritance tax planning, estate administration or the establishment and administration of lifetime trusts. These matters require careful consideration and there can be serious financial consequences when things go wrong.

How we can assist

We have broad experience and can help beneficiaries, executors or those who believe they should have benefitted under a will with:

Bringing or opposing claims for rectification of mistakes in wills;
Bringing or opposing so called ‘construction summonses’ for interpretation of unclear terms in wills;
Negligence claims against solicitors or other professionals:
- in respect of poorly drafted wills;
- where, because of their delay, a will has not been executed in time; and/or,
- for negligent advice in relation to estate and tax planning, estate administration and/or in relation to the establishment and administration of trusts.

Frequently asked questions

We have answered some of the more frequently asked questions we receive around contentious probate. If you have a question that is not answered below, please contact Jason Oliver.

My elderly and unwell father made an appointment for a solicitor to do a home visit to change his will to leave his house to me. He made a point of saying that the matter was urgent as he was in poor health. The solicitor attended the appointment and took his instructions, and said that he would draft the new will when he was back in the office. My father died three weeks later before the solicitor had prepared the new will. What can I do?

The solicitor was aware of your father’s condition and should have drafted the will sooner. Some practitioners faced with this situation would write out the new will by hand “on the spot” in case their client’s health deteriorated quickly, and get it signed straight away. The solicitor was also aware of your father’s intention to leave the house to you. It was not reasonable to delay the drafting in the circumstances. We can help you to pursue a claim against the solicitor to put you in the position that you would have been in if the new will had been prepared as your father wished.

My parents made “mirror wills”. The will drafter followed their instructions carefully and produced a will for my mother, which she approved. An identical will was then prepared for my father. He died first. After he died, it was discovered that all that the will drafter had done was to change the name on the will, and had not made any other changes. As a result, the main legacy in my father’s will was left to his “husband”. As a result I have been told that the legacy fails and there will be a partial intestacy. What can I do?

If the will drafter’s file shows clearly what the intentions and instructions were, then this mistake will be treated as an administrative error rather than negligence. Accordingly, it will be possible to apply – either to the probate registrar or the court depending on the circumstances – for rectification of the will to substitute “wife” for “husband” so that it has the intended effect. We can assist with that and recovering the costs of the exercise from the will drafter.

How we’ve helped our clients

“Jason’s expertise helped us confidently navigate a difficult will dispute. We are grateful for his efficiency, and empathy throughout this process. Thank you Jason for getting us a resolution allowing us to move forward with our lives.”

Shari Gallop – Contentious Probate Client

“Responsive progress when required; felt advice given was appropriate and helpful without emotional bias (which was much appreciated In the difficult circumstances I was put in). I felt that Jason Oliver was ‘going the extra mile’ for my mother and myself.”

Client – Contentious Trust & Probate

“Jason quickly analysed correspondence I shared, together with background from our phone discussion, to prepare a very relevant and helpful response to a letter of claim in connection with my role as an executor. Definitely gave me confidence and put my mind at rest.”

Contentious Trust Client

“It is over a year now that I was faced with trying to resolve the matter and I can’t thank yourself, and in particular Oliver enough for bringing this to a happy conclusion after many unpredictable shifts and turns.”

A Client in a Probate Dispute Case

“When a distant relative died, unexpectedly I found myself as executor of her will. It was being administered by the solicitors who had been holding the Will. Annoyingly, the Will had been badly written and contained mistakes and ambiguities. It became obvious to me that those dealing with it were incapable of resolving the situation and were wrongly pursuing pointless and expensive lines of investigation. I mentioned this to a friend who told me that while dealing with Paris Smith he had learnt that they had a man who specialises in bad wills. I approached Paris Smith and Jason Oliver said that he could help me. Jason considered all the facts and immediately stopped the administering solicitors from proceeding further. With his expertise he was able to resolve the complex issues while keeping me fully informed at all times. He guided me through Zoom meetings, dealings with barristers and High Court procedures. Best of all, the estate was finally divided as originally intended. I was very impressed with the professionalism of Jason Oliver and would recommend him to anyone requiring legal advice and guidance. ”

Gerry Burnell

“I used Paris Smith in a family situation that I was finding immensely stressful. Jason listened carefully, and gave the time required to understand the problem. He followed up the initial meeting with some very sound advice, and had a great knack of cutting through the emotion to work out the issues. I remain very grateful for his pragmatic and level-headed approach.”

“As we discussed at the beginning, it was never about the small cash inheritance but more of the injustice of being unrecognised as equals. Finally we have peace of mind. Therefore we would like to again thank you for your continued support, expertise and professionalism throughout. We couldn’t have done it without you!”

Clients with a probate dispute

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