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A statutory will is a lifesaver for those who do not have capacity to make a will, but they are not always immune from challenge

CONTESTING A WILL – CAN A DISAPPOINTED BENEFICIARY SUE THE SOLICITOR WHO FAILED TO PREPARE THE WILL IN TIME?

Will Claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a disappointed beneficiary can sue the Solicitor who failed to prepare a relative’s Will in time or at all.

What circumstances can lead to this type of Will dispute or Will contest claim

In a previous blog we highlighted the importance keeping your Will up to date (https://www.willclaim.com/martin-v-williams-will-hasnt-updated/).This type of Will contest claim can arise in circumstances where someone who is usually a near relative has written someone out of his/her Will because of a dispute or disagreement, but then change their mind towards the end of their life. Following this rekindling of relations the person concerned instructs a Solicitor to change his/her Will but the Solicitor for whatever reason fails to complete it before the person who wanted to change his/her Will (perhaps unexpectedly) passes away thus rendering the attempt to update the Will ineffective.

So what Will dispute or Will contest claim can be brought to remedy the position?

In our previous blog as mentioned (https://www.willclaim.com/martin-v-williams-will-hasnt-updated/), we considered how a successful claim could be brought under the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63) and how this was applied in Martin v Williams 2017 EWHC 491 (Ch) (https://www.bailii.org/ew/cases/EWHC/Ch/2017/491.html) by the disappointed partner of the deceased (who had lived with him for many years as his “common law wife” even though he remained married to another) – she was successful in her claim. However, the facts of most claims do not necessarily lend themselves to claims for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 because of the limited type of potential Claimants (near relatives and/or dependants).

What other recourse could the disappointed beneficiary have?

Here lies the problem. A number of key facts are likely to apply to this type of Will dispute or Will contest issue to include:
• There is no real loss (after all what in fact the prospective beneficiary will receive is a “windfall” – he/she has no right to inherit in English and Welsh law)
• The testator (the person making the Will) has the direct contract with the Solicitor (who should have helped him/her make the Will) not the beneficiary who has no right to “enforce” the contract
• The testator hasn’t suffered any damage so might not then have a right to sue either and in any event is dead
• The testator’s Personal Representatives/Executors after his death and who can take action to rectify any damage to his estate or recover losses, can’t bring such a claim themselves as there has been no direct loss or damage to the estate

The White v Jones solution

It was these issues their lordships (this is an old House of Lords decision) in White v Jones 16 February 1995 (see https://www.bailii.org/uk/cases/UKHL/1995/5.html) set out to resolve and did by formulating a potential claim by beneficiaries against the neglectful Solicitor(s) even though there was no direct contractual relationship with them and indeed only a “theoretical” loss in law (albeit I appreciate most disappointed beneficiaries would not consider their loss as “theoretical”). Lord Goff of Cheiveley, who gave the leading Judgment, phrased this particularly well:

In my opinion, therefore, your Lordships’ House should in cases such as these extend to the intended beneficiary a remedy under the Hedley Byrne principle by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor. Such liability will not of course arise in cases in which the defect in the will comes to light before the death of the testator, and the testator either leaves the will as it is or otherwise continues to exclude the previously intended beneficiary from the relevant benefit.

In our next blog, we will consider whether the Solicitor should have known or understood there was an imminent prospect his client would die before the Will was completed and taken steps to expedite his/her instructions and further what degree of delay is unacceptable.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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