A will is probably one of the most important documents you will prepare in your lifetime.  Your will allows you to dictate what happens to your estate after you die and will often also dictate your funeral wishes. It is therefore important that a will reflects your wishes and is properly prepared.  A failure to do this may mean your estate is not left as you would have wished or you might miss out on the opportunity to leave your money in a tax efficient manner.

Bearing in mind the importance of your will, it is important that you instruct a solicitor that you trust to make sure your will is correct.  A solicitor will be able to take your instructions, ensure your estate will be dealt with in the way you see fit, make sure your will is properly executed and complies with procedural formalities, and good solicitors will usually advise on your tax position and may be able to suggest ways to maximise the tax efficiency of your affairs.

However, it is an unfortunate reality that sometimes solicitors make mistakes and your will either is invalid or does not do what you expected.

So, what happens if your will is incorrect?

If you notice your will is wrong during your lifetime

It is easy to deal with a mistake in a will during your lifetime, you can either correct the error by making a codicil which amends the affected clause, or if the whole will is wrong, you may need to prepare a whole new will which revokes the old one (provided you have capacity to make a new will or codicil).

If a solicitor has prepared your will and made an error which has resulted in your will being incorrect or invalid, they may have breached their contractual and statutory duties owed to you i.e. they may have been negligent. 

However, in order to bring a claim for negligence you must have a breach and loss or damage.  In the case of an incorrect will where the mistake has been discovered in your lifetime, you are unlikely to have any loss, and if you did it would be limited to the costs of correcting the mistake i.e. preparing your codicil or new will.  The first step would usually be to contact the solicitor who prepared your will and explain the error to them.  Most solicitors in those circumstances will offer to correct the mistake at no charge to you.  No harm, no foul.

If a mistake is discovered after your death

Incorrect wills become much trickier to deal with after the testator’s death, because the option of just preparing a new will is no longer available. Mistakes in those circumstances can have a variety of consequences including:

• Additional tax being due;

• Beneficiaries who expected to benefit from your estate not receiving the expected benefit; and

• Additional costs.

There may be claims either by disappointed beneficiaries (in some circumstances) or, more commonly, by the executors of the will (or administrators of the estate in the extreme case of a will being completely invalid) on behalf of the estate.  Those claims will usually be for breach of contract and/or negligence.  The solicitor, or will writer, who made the mistake will be expected to compensate the estate/beneficiaries and put them back in the position they would have been if the mistake had not been made.

A word of warning on will writers

Whilst writing wills is a common activity for solicitors it is not a regulated activity and you do not have to be a solicitor to prepare wills.  There are companies who specialise in will writing (“will writers”) who often tout their services as a reasonably priced alternative to solicitors. 

We have already written about the dangers of using will writers who are unregulated and often do not have the best training or experience.  Considering negligence claims is a further reason why we would strongly recommend that you use a solicitor to prepare your will.  It is a requirement that solicitors have professional indemnity insurance covering the risk of claims in breach of contract and negligence arising out of their own mistakes.  If a firm of solicitors closes, another firm must take over the deeds it holds (so your will could not be lost) and most firms are required to maintain ‘run off’ insurance cover for claims which occur after the closure of the firm or are taken over by another firm who will have insurance cover for any claims.

This is not true of will writers.  Whilst it is possible to bring a claim in negligence against a will writer you will need to consider the commercial viability of the claim, especially if you are an executor with obligations toward the estate.  Will writers are not required to maintain insurance and are often limited companies with similarly limited resources or individuals operating as sole traders.  Without insurance cover in place, it is far more likely that in a claim against a will writer:

• They may have moved, gone out of business, or otherwise be impossible to track down, leaving you unable to bring your claim; or

• Even if you are able to bring a claim, the will writer or their business may not have the resources to meet any order for damages or costs, leaving you with a large legal bill and unable to recover the money you’re owed even if you win your claim.  A hollow victory indeed.

It may sound rather negative to think about the possibility of bring a claim regarding your will before you’ve even prepared it, but it is a fact of life that everyone makes mistakes and it is always worth thinking about what would happen in a worst-case scenario.

If you feel you have been let down by a professional who has prepared your will, please do not hesitate to contact Toby Walker by email or on 01494 893512 or Kezia Brown by email or on 01494 893504.