The Deceased’s instructions to his solicitor were clear: he wanted the house to go to his daughter and the balance of his Estate to be divided amongst the rest of the children. Save that for some reason, the clause about the house didn’t make it into the Will. Does this mean the daughter loses out on the house? Not necessarily.
One option available to her is rectification of the Will. Traditionally, a Will was always treated as inviolable, whether or not it was correct. However, s20 Administration of Justice Act 1982 now allows the courts to intervene if it is clear there is a “clerical error” in the drafting of the Will, or the person who drafted it didn’t properly understand the Testator’s instructions. Obviously the Court will not simply step in on the basis of a disappointed beneficiary’s say-so: there must be clear evidence of the error. The Court will consider either oral or written evidence but either way, it must be convincing. A letter from the solicitor to his client (which the Deceased approved) setting out the correct terms of the Will is ideal. In those circumstances, the solicitor will be invited to own up to his error and to pay the costs of the application to the Court.
But what if the solicitor doesn’t admit the error or there isn’t such a letter on the file? In that case, the disappointed beneficiary may have to bring a claim against the solicitor for professional negligence. This will be more difficult as again it will come down to the strength of the evidence available. Nevertheless, the law has been clear since the 1995 case of White –v- Jones that even though there is no contractual relationship between a solicitor and a beneficiary, the solicitor should be able to foresee that if he doesn’t get the Will right, it could harm the intended beneficiaries and therefore a duty of care is owed.
Interestingly, the duty extends not just to ensuring the Will is drafted properly but also to making reasonable efforts to ensure the Will is executed in accordance with the law. In the White –v- Jones case, Mr White gave instructions to his solicitor, Mr Jones, to change his Will. Unfortunately, Mr Jones dilly-dallied, during which time Mr White had a fatal accident. His daughters, who would have benefitted from the updated Will, successfully sued Mr Jones.
Since White –v- Jones the courts have been increasingly willing to impose a duty on solicitors to get the Will prepared and signed within a reasonable time, especially if there is a likelihood of imminent death.
If you think that you may have a claim, then please do not hesitate to speak to professional negligence specialist Emma Slade on 01392 423000 or contact her by email at [email protected]