Whilst there is theme in this blog of the dangers of using unregulated providers of legal services (see here), that is certainly not to say that the venerable members of our own profession never make mistakes.

Naturally when you are dealing with people’s personal matters this can be both upsetting and sometimes very costly. So, what can you do if you realise after someone has died that a solicitor has misconstrued their instructions and drafted a Will that simply doesn’t do what was intended?

In essence there are 2 possible solutions here, and both are designed to rectify the situation in totality.

A Negligence Claim

One of the benefits of using a regulated provider is the warranty that comes with ‘the work’. All solicitors are adequately insured and indeed will remain insured even if a particular firm closes or transfers its business elsewhere (this is one of the most important benefits of using a regulated provider). The first port of call then is to claim against the solicitor’s indemnity policy. That might look like raising the issue directly with the solicitor in question or instructing your own independent solicitor to take this forward for you. In essence though, should the negligence be clearly found, then insurance will pay out and restitution will occur.

Seek Rectification 

The second option is to seek rectification of the Will. In essence this is likely to occur when following route 1. If the solicitor in question acknowledges the issue, and the issue itself was one of clerical error on their part, or a failure to understand and give effect to the testator’s wishes, then Courts can rectify the Will under Section 20 of the Administration of Justice Act 1982. Often the solicitor themselves will be happy to take this forward as it fully avoids them having to claim on their indemnity policy. One of the further advantages of using a full-service law firm to prepare your Will is they will usually have the in-house expertise to fix any issues that arise in this fashion.

Both routes then will restore you to the financial position you should have been in but for the error.

It is also entirely possible, although less common, for the individual beneficiary to apply directly to Court to rectify the Will on the basis of the solicitor’s error. This is again achieved under Section 20 and I am pleased to link here to the Gazette’s interesting summary of a recent case where this application was successful.

If you believe you have been harmed by an error or omission in a Will caused by the draughtsman, please feel free to contact the author directly by email or on 01494 893 533 for further advice.