In a previous blog “Specialist Lawyers Lead the Way”, I illustrated that contentious probate claims are on the increase. The areas in which the rise has been most prolific are claims challenging the validity of a Will and claims made by disgruntled beneficiaries under the Inheritance (Provision for Family and Dependents) Act 1975.
The reasons for this increase are well documented but what of the solicitor who drafted the particular Will in question? Can they stay out of the spotlight when a claim or a potential claim is commenced?
By their very nature, contentious probate cases arise after the death of the individual concerned, thus the main witness to any dispute is unable to answer crucial questions of evidence as to their intention at the time they made their Will. There may also be an added complication where the individual suffered illness prior to their death and there is a question over whether they had capacity to make the Will in the first place. Clearly, for the solicitor acting in ensuing litigation, it is imperative to understand and to obtain as much evidence about the deceased’s intentions as soon as possible.
There are many steps Will draftsmen can take to protect themselves from liability. For example, a simple but sometimes overlooked point is that full attendance notes of all instructions from the deceased should be prepared. If there is any possibility that the client is suffering from any illness when providing instructions, medical experts should be employed so that their opinion can be placed with papers on the file. The client should be advised of the potential ramifications of not doing so. Whilst lack of capacity is notoriously difficult to prove, ensuring these steps are taken, when necessary, may swiftly resolve any potential dispute concerning capacity, especially if the matter was well documented and foresight was used.
The first step in almost all contentious probate cases is therefore to obtain full disclosure from the solicitor who drafted the Will.
Obligations on Will draftsmen in contentious matters
In the case of Larke v Nugus  WTLR 1033 the Court of Appeal laid down obligations upon Will draftsmen to provide full disclosure of their files including any evidence concerning the execution of the original Will and all other information and documentation which is relevant to the dispute. The Law Society has now taken this a step further and issued a practice note setting out in detail the obligations incumbent on Will draftsmen and the penalties which could potentially be imposed on those who fail to act in accordance with the practice note. Such penalties include adverse Costs Orders and damages claims equal to the sum of the litigation costs if it can be shown that litigation would have been avoided had the Will files been disclosed at an early stage. This duty applies similarly where solicitors act not as executors but as advisers to the executors.
Will draftsmen who are somewhat reticent to disclose files run the risk of arousing suspicion even if this suspicion is ill founded. Whilst the guidance set out in the practice note is not statutorily based, the Court has additional powers to impose adverse Costs Orders where it feels behaviour has been unnecessary or unhelpful to the litigation. The guidance simply increases the scope for penalising the Will draftsman.
The importance of careful advice, forethought, and clear drafting
Failure to advise correctly when drafting a Will and taking instructions from a client may carry with it consequences of potential professional negligence actions. In the eyes of the potential Claimant the person drafting the Will did not discharge their duty correctly. However, it should be borne in mind that in those circumstances, full disclosure combined with clear attendance notes can in most cases ensure that the Will writer has adequately carried out their duties to avoid criticism.
At the time probate litigation is commenced the parties are often grieving over the loss of a loved one and have the added stress of being caught up in a dispute with, in most cases, other family members or friends. It is clearly an unhappy time for those involved. Will draftsmen should be advised to take carefully planned steps to ensure that they do not become the subject of a legal claim should a dispute over a Will arise. In the event that they are unable to stay out of the spotlight, Will draftsmen should ensure that they seek their own independent legal advice as soon as they have been notified of any potential disputes.
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