Claire Cox, a solicitor in the Dispute Resolution team at Hedges Law, has a special interest in inheritance disputes and discusses how Will writers can protect themselves from potential claims.
Inheritance claims and probate disputes continue to rise, and with that, so does the cost of professional indemnity insurance.
So how can will writers protect themselves from potential claims? I have taken a look at case law, in which the Court’s criticism of will writers serves as an invaluable lesson.
Lesson #1 : Investigate any changes in the Testator’s intentions
Mundil Williams v Williams [2021] was a case in which a paralegal misinterpreted a standard form which had been prepared by a secretary, and produced a will which was not in accordance with the Testator’s intentions. The consequence being that the Testator’s son was disinherited.
If the Testator’s instructions appear to have changed or you spot an inconsistency, ask the Testator for reasons why. Prepare a full attendance note of the discussion and follow this up with written advice as to the consequences of any changes. Read the will to the Testator and record that you have done so.
Lesson #2 : Record any reasons given for not providing for a close family member under the will
Coles v Reynolds [2020] concerned a claim by the deceased’s daughter that the deceased had been unduly influenced by her sister, and there was a lack of knowledge and approval. The Court, in dismissing the claim, specifically referred to the solicitors note which stated:
“She was adamant that she did not want the Claimant to inherit as she had done nothing for her mother and no longer wants to see her, she said her daughter (the Defendant) does everything for her”.
This note convinced the Court that the deceased knew exactly what she was doing, but it is easy to imagine how things could have gone very differently in the absence of an attendance note and independent meeting.
Lesson #3 : Your job does not end after the draft will is submitted to the Testator!
Many are familiar with the case of Marley v Rawlings where the husband and wife signed each others wills. Check the will has been properly executed when you receive it back. If you are not present at execution then clients should be given advice orally in terms of how to execute, not just in writing.
Lesson #4 – Avoid undue delay, know your client
In the case of White v Jones [1995] a time lapse of 44 days between instructions and death was considered unreasonable taking into account that the Testator was 78 years old.
Similarly, it has been held that failing to chase a report on capacity after 10 days was negligent for a healthy 90 year old (Feltham v Bouskell [2013]). Ensure you have capacity to accept instructions, and use case management systems to set reminders.
Lesson #5 – Don’t forget to advise on severance
In the case of Carr-Glynn v Frearson [1998] a solicitor was held liable to the disappointed beneficiary for failing to prepare a notice of severance, even though the client was uncertain as to the basis on which she owned her house and had said that she would check the title deeds herself. Find out the Testator’s intention and advise on the steps necessary to sever, otherwise the property will not fall as part of the estate.
