If you are a disappointed beneficiary under a Will, that is, you were intended to receive a benefit/behest which you are denied because of the negligence of the professional Will drafter, then you may have a claim.
This is a departure from the ordinary rules of negligence which provide that a professional only usually owes a duty of care to their client; which in this case would be the testator (Will-maker) and on their decease their estate.
The application of this rule would create an obvious unfairness. A professional, usually a solicitor, could have been negligent in drafting a Will, and someone who would otherwise have been a beneficiary under the Will has lost out as a result. However, as the testator/their estate would be the only party with the standing to bring the claim, and they have not suffered a loss, then no claim could be brought.
Disappoint beneficiary claims
The Courts recognised this unfairness, and the law, therefore, allows (in certain circumstances) disappointed beneficiaries to recover their losses against the professional Will writer even though there is no contractual relationship between them.
For example, such a claim could arise in the following circumstances:
- Instructions were given for a Will to be put in place or amended but the solicitor delayed putting these instructions into effect. In the interim, the testator died and those who would have been entitled to a benefit under the Will do not receive it as a result. In other words, to bring a claim there does not need to be a Will provided there is sufficient evidence of what its contents were intended to be.
- A beneficiary or their spouse/civil partner is asked to witness the Will. They are therefore unable to take the benefit which would otherwise have been given to them under the Will.
- The formalities of a Will were not otherwise followed and it was ineffective. The benefits under that Will were either not granted in an earlier Will which is proved, or by the rules of intestacy.
In the latter case, there may have been litigation resulting from the conflicting Wills/questions of capacity, and therefore a claim may be brought after the failure of earlier litigation to have the latter Will accepted.
There are limits on what can be recovered, for example, the professional cannot be held to have owed a more extensive duty to the disappointed beneficiary than they did to the testator, and these cases are highly fact-sensitive, however, the losses that have been suffered by a disappointed beneficiary may also be very considerable.
How can we help
If you have any questions in relation to the above article or any related subjects, please contact a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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