It has only been in the last 25 years that if a draftsman negligently failed to undertake his duties correctly and produce an accurate will to reflect a Testator’s instructions, a disappointed beneficiary has been given a right of recovery. Previously it was considered that as they had not been a party to the will-making contract they had no ‘right’ to make a claim.
However, the decisions in Ross v Cauters, in which solicitors failed to properly direct the Testator in connection with how his will should be witnessed, and White v Jones, in which the courts used the Caparo test to satisfy itself that a beneficiary’s loss was foreseeable, have changed that. In the latter case it was held that if an instructing solicitor having drafted a previous will, did not then carry out the instructions of the Testator immediately prior to his death and make changes to the gifts in the will in their favour, the expectant beneficiary could bring a successful claim for negligence.
These cases highlight a huge risk area to the profession and an absolute obligation on the draftsman to produce accurate documents in a timeframe commensurate with the importance of the instructions they have taken. Not only must the draftsman produce a will to give effect to the Testator’s wishes, but his continuing obligation does not die with the Testator themselves. Any shortcomings in the drafting which result in a loss to a beneficiary are grounds for a claim for damages.
In addition to this, when producing the will, the draftsman is duty bound to consider all matters which would undermine the validity of the will including lack of testamentary capacity, lack of knowledge and approval, undue influence and fraud. Such considerations have never been more relevant than in 2020/2021 when the opportunities to meet face to face with clients have been significantly diminished and replaced by online zoom calls and remote instructions.
Given the low value that many clients place upon the exercise of having a will drafted, never has the quality of a draftsman’s work been so important, the stakes been so high and the document so undervalued.
Be cautious about being lulled into online deals offering a will drafting service for under £100.00 inc VAT. You are considering a lifetimes worth of wealth and relationships and your wishes and instructions must be carried out professionally and diligently, for which the draftsman is entitled to make a reasonable charge.
Author: Amanda Perrotton
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