Where there’s a Will, there’s a claim?

The rise in claims against Wills and Probate solicitors

The last few years have seen a rise in trust and probate litigation. Disputes over wills, trust litigation, and the removal of executors and trustees are all on the increase. Unfortunately, that also means that firms are also seeing a rise in professional negligence claims against their private client teams.

So, why is this happening and what can you do to reduce the risk of claims?

Complex families

A death can unfortunately bring long held grievances within a family to the surface, making litigation more likely. The concept of the family unit has changed significantly over the years. This can lead to conflict if the deceased’s intentions have not been communicated to everyone in the same manner. This can be particular prevalent in wills made following subsequent marriages creating tensions with the new spouse, the testator’s children from previous marriages and any stepchildren.

Increase in property valuation

Property prices have increased throughout the country, meaning estates comprising the family home alone are now worth a significant amount. Disappointed would-be beneficiaries are therefore more likely to invest time and money into a dispute over a significant asset.

Increase in life expectancy

People are living longer and people are making wills, or changing them, at an older age. The current Covid crisis is also likely to prompt people to make a will for the first time or to revisit a will that may have been written many years ago. As age-related illnesses may impact on the mental capacity of an individual, the question of whether a new will is valid as a result of the testator’s capacity to make the will is more frequently being brought in to question.

Claims

The complexities faced by solicitors seeking to navigate clients through the issues highlighted above means that, sometimes, mistakes will be made. Trust and probate litigation can also be highly emotive for the parties involved, which may increase the likelihood of executors, trustees and beneficiaries looking to blame their lawyers when things don’t work out as planned. As a result, claims against private client solicitors and contentious probate solicitors are on the rise.

We act for solicitors across the country when they face claims. Some recent examples include:

• Badly drafted or delays in drafting wills leading to clients dying intestate or without a new will which accurately reflects their wishes;
• Flawed advice in relation to inheritance tax implications;
• Incorrect advice given in relation to claims under the Inheritance (Provisions for Family and Dependants) Act 1975 and/or missing the limitation period for such a claim; and
• Delays and mistakes during the administration of estates.

Tips to avoid such a claim

There are a number of ways in which you can reduce the chances of your practice receiving such a claim which include:

1. Ensuring that the terms of your retainer are correct and agreed by your client so that there is a mutual understanding between all parties as to what you are instructed to do;
2. Ensuring that all meetings with testators are recorded in a detailed attendance note and confirm your client’s instructions and/or advice given in writing following the meeting;
3. Ensuring that all deadlines and timescales are complied with both in terms of deadlines set by your clients and/or limitation deadlines for contentious claims you are instructed on; and
4. Ensuring that there is adequate supervision in relation to junior members of staff is in place to review drafting and ensure that it reflects instructions given by your client.

This article was provided by Samantha Morley, Senior Associate, Mills and Reeve on behalf of JM Glendinning Professional Risks. If you have any questions regarding Professional Indemnity Insurance and associated risk management topics, please contact Kate Edmondson on 01943 660 816 or kate.edmondson@jmginsurance.co.uk