When you instruct a solicitor, you rely upon their expertise and that they will carry out your instructions. A solicitor in turn, is expected to exercise ‘reasonable care, skill and diligence’ in dealing with your instructions.
What constitutes ‘reasonable care, skill and diligence’ varies from case to case, and professional negligence claims arise for all sorts of reasons. Examples encountered by our professional negligence team include, missed deadlines, failing to register a property correctly (or at all) and, more generally, providing inadequate advice.
Claims against wills and probate specialists
Unfortunately, we sometimes see claims against wills and probate solicitors. Professional negligence claims against will writers or wills and probate specialists could include, for example:
- Unreasonable delays in preparing a will. This is most apparent where the solicitor has negligently delayed preparing the will and the client has died before the will was executed.
- Poorly drafted wills. For example, if the solicitor failed to properly bequeath items under the will
- Failure to properly advise the client on executing the will, leading to an invalid will
- Incorrect advice relating to probate
- Defective tax planning advice
- Incorrectly administering the estate.
These errors can result in significant losses for the client’s estate and /or beneficiaries. It is therefore imperative that you choose your wills and probate solicitor carefully. Most wills and probate solicitors have significant expertise in the area and will advise you thoroughly and properly. However, if they do make an error, you may have a professional negligence claim against your wills and probate solicitor.
Can I sue a wills and probate solicitor?
In order to have a successful professional negligence claim, you will need to show three elements:
- That the solicitor owed their client a duty of care;
- That the solicitor breached that duty; and
- That breach caused the client to suffer a foreseeable loss.
If the solicitor owed their client a duty of care, case law states that they also owe the client’s beneficiary the same duty. This means that beneficiaries under a will can bring a professional negligence claim if the negligence comes to light after the client’s death.
For example:
Let’s say a solicitor did not properly assess a client’s (Mr A) capacity to make a will. Mr A did not have capacity, and therefore the will was invalid. Mr A’s family discovered that the will was invalid after Mr A’s death. Any disappointed beneficiaries may have a professional negligence claim against the solicitor.
Limitation
While professional negligence clams can be brought where a solicitor has not discharged their duties properly, there are strict deadlines which apply to these cases. Generally, you will have six years from the date of breach to pursue a claim against the solicitor. If you are a beneficiary to a will, this limitation period starts to run from the date of death of the person making the will (‘the testator’).
In some cases, if you find out about the negligence later, you may have three years from the ‘date of knowledge’ of the breach. It is vital that, if you believe you have a claim against a wills and probate solicitor, you seek advice as soon as you are able.
Our professional negligence team work closely with our contentious probate solicitors. If you are concerned about the actions of your former solicitor, or perhaps the solicitor who acted for a loved one before their death, our professional negligence team has the expertise to assist. Call us on 0800 988 7756 or use the contact form to arrange a free initial discussion.
