NOTE: This article was published in October 2013 and reflects the law as it stands on the date of publication and not at any later date.
Negligence where solicitor prepares an invalid Will
Assume the following scenario:
- A testator executes a Will (“Will 2”) revoking a previous Will (“Will 1”).
- Will 2 is set aside in a probate claim, brought by the beneficiaries of Will 1, on the grounds of lack of testamentary capacity, want of knowledge and approval and/or undue influence.
- The beneficiaries of Will 1 obtain an order for costs in the probate action against the defendant beneficiaries/executors of Will 2, but the order cannot be enforced (e.g. because the defendants were publicly funded).
- The personal representatives or beneficiaries of Will 1 then bring negligence proceedings against the solicitor who prepared Will 2 alleging that the solicitor was negligent in preparing Will 2 for a testator:
- whose lack of capacity would have been revealed if sensible precautions had been taken (such as following the golden rule); and/or
- where it ought to have been apparent that the testator did not know and approve of the Will, e.g. because the solicitor took instructions from a third party; and/or
- where the solicitor failed to take due precautions against undue influence, e.g. by taking instructions in the presence of a beneficiary who is subsequently found to have exercised undue influence. Continue Reading