Against your will - part 1

This two-part article examines the will writing process and looks at when things go wrong, such as when a will is defective as a result of drafting errors, improper or incorrect execution, undue delay, when the testator lacks capacity to make a will, or is under duress and/or undue influence, and ways to prevent mistakes arising.

There are strict requirements under English law that need to be followed when preparing a will to ensure that the will is valid. The very nature of the will writing process, which is often complex and emotional, means that many mistakes can occur during the course of preparing the document. Whilst in many instances, the process can be straightforward, in more complicated estates there is more scope for errors. There are also complex tax implications that can arise, such as inheritance tax and capital gains tax requiring specialist tax advice, but this is beyond the scope of this article.

So, what happens when things go wrong?

All solicitors and professional will writers owe a duty of care throughout their engagement to both the testator (the person making the will) and the beneficiaries (those who stand to benefit from the will). The duty of care owed to testators is relatively clear, as it is one that is underpinned by the law of contract and tort. However, the duty of care owed to beneficiaries is now an established independent right. The two leading cases in the field of negligent will preparation are Ross v. Caunters[1] and White v. Jones[2] both of which deal with the liability of solicitors. In Ross v. Caunters, the solicitor failed to spot that the will had been witnessed by a spouse of the beneficiary, thereby invalidating the will. This was a landmark decision, as it was the first occasion in which the court was asked to impose liability on a professional adviser, outside the contractual context, and for liability to be imposed on a third party who was not the client. Until that decision the law was clear – a solicitor owed no duty to anyone other than  their client.

In the latter case of White v. Jones, the legal position in Ross v. Caunters was reaffirmed. The solicitor in that case had failed to act on the testator’s instructions in time and he died before a new will could be executed. The House of Lords confirmed that a solicitor who negligently failed to give effect to his client’s testamentary intentions would be liable to compensate the intended beneficiaries for the loss of their interests in the estate.

However, it is clear from the case of Carr-Glynn v. Frearsons (a firm)[3] that there can only be a breach of duty to the disappointed beneficiary if there was a breach of duty to the testator.  Chadwick LJ made it clear that “the duty owed … to the specific beneficiary is not a duty to ensure that the specific beneficiary receives his inheritance. It is a duty to take care to ensure that effect is given to the testator’s testamentary intentions.” 

Although the leading cases are all in the contexts of solicitors, it is now generally accepted that the same principles apply to anyone who prepares a will, for example will writers. The point was considered in the case of Esterhuizen v. Allied Dunbar[4]. The judge agreed that the White v. Jones decision was not confined to solicitors and that the same responsibilities were owed by non-solicitors, in that case the insurance company, Allied Dunbar, who prepared the will.

It is easy to deal with a mistake in a will during the testator’s lifetime, as they can either correct the error by making a codicil, a supplementary document which amends the affected clause; or, if the entire will is wrong, they can prepare a new will, which revokes the old one (provided they have capacity to make a new will or codicil). In such circumstances rectifying the mistake would be limited to the costs of correcting the mistake i.e. preparing a codicil or new will. 

However, incorrect wills become much trickier to deal with after the testator’s death, because the option of just preparing a codicil or a new will is no longer available. The solicitor or will writer who made the mistake will be expected to compensate the estate/beneficiaries and put them back in the position in which they would have been, if the mistake had not been made.

The next part of this article will look at the circumstances in which things can go wrong …

[1] [1980] 1 Ch. 297

[2] [1995] UKHL 5

[3] [1998] EWCA Civ 1325

[4] [1998] 2FLR 668