Negligence claims relating to will drafting

Will writers - which includes even non-qualified will writers, as well as solicitors and professional will drafters - owe a duty of care to the person making the will (the testator) and also to potential beneficiaries under the will. If they breach that duty of care and cause loss they could be found to be negligent.

A few examples of where will writers can be found negligent include:

  • Failing to prepare the will in accordance with the testator's instructions.
  • Failing to check the will for clerical errors that nullify or have an adverse effect on part of or the whole will.
  • Failing to ensure a will is validly executed.
  • Failing to ensure a will is prepared in a timely manner before the testator dies.

Will writers also have a duty to consider the testator's mental capacity (known as testamentary capacity). The Courts will expect will writers to follow the "Golden Rule", which states that a medical practitioner should witness or approve the will of an elderly or ill testator and confirm that the testator had testamentary capacity. If the will writer has failed to comply with the Golden Rule he or she could face a negligence claim.

Consideration should also be given to the risk of a claim being made under the Inheritance (Provision for Family and Dependants) Act 1975. Although Inheritance Act claims cannot always be avoided, will writers should consider any potential claims and advise the testator appropriately. Failing to highlight a possible Inheritance Act claim could give rise to a negligence claim against them for the costs of any subsequent Inheritance Act proceedings.

If you would like advice on challenging a Will, or indeed on any other inheritance or trust dispute, please contact our Disputed Wills and Trusts Team by telephone on +44 (0)1884 203 018 or FREEPHONE 0800 0931336, or by email willdisputes@ashfords.co.uk.

Key Contact

Robert Horsey

Partner and Location Head, Tiverton

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+44 (0)800 0931336


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