Claims against Will writers

If you have suffered financial loss because a Will writer made an avoidable mistake when drafting, advising on, or arranging the execution of a Will, you may be able to bring a professional negligence claim against the Will writer (or their firm) to recover compensation. Errors in Will writing can be particularly distressing because they often come to light after a death, at a time when families are already dealing with bereavement, probate and estate administration. The impact can be significant: unintended beneficiaries, disappointed family members, increased inheritance tax, unnecessary disputes, and substantial legal costs.

What constitutes professional negligence by a Will writer?

Will writers are expected to use reasonable care and skill in the services they provide. This includes taking detailed instructions, advising on the different options and associated risks, correctly drafting and executing documents, and maintaining appropriate records.

A negligence claim typically arises where the Will writer’s work falls below the standard of a reasonably competent individual undertaking the same role in similar circumstances, and that failing causes a measurable financial loss.

The scope of the duty will depend on what the Will writer was instructed to do and what they held themselves out as able to advise on. Some Will writers are asked to prepare a straightforward Will. Others provide broader estate planning services, including advice on trusts, lifetime gifts, property ownership structures, or inheritance tax planning. Many disputes turn on whether the Will writer properly identified the testator’s objectives, asked the right questions, and gave clear advice about the consequences and risks of the chosen approach.

Common examples of Will writer negligence

Professional negligence claims against Will writers can arise in many different ways. Common examples include failing to draft a Will that properly reflects the testator’s instructions, including ambiguous wording that leads to competing interpretations, or omitting key provisions (such as residuary gifts, substitution clauses, or clear appointment of executors).

Other commons issues include failing to ensure that the Will is properly executed which deems the document invalid, unenforceable, and open to challenge. Claims also arise where the Will writer fails to advise on (or properly record and address) capacity concerns, vulnerability, or potential undue influence risks, increasing the likelihood of a contentious probate dispute that might have been avoided.

In estates with more complex assets, negligence allegations can include failure to advise on how property is owned (for example, the consequences of joint tenancy versus tenancy in common), failure to consider how business interests should pass, and failure to address tax consequences in circumstances where basic planning could have reduced avoidable liabilities. We also see claims involving lost or poorly stored original Wills, or delays in preparing a Will where the testator loses capacity or dies before signing.

Not every disappointed beneficiary has a negligence claim. Family disputes can arise even where advice was competent. The key question is whether the Will writer’s work fell below the required standard and whether the loss is attributable to that failing.

Time limits for bringing a claim

Limitation can be decisive in Will writer negligence claims and should be assessed as early as possible.

In broad terms, professional negligence claims are often subject to strict time limits, commonly running from when the cause of action accrues. Where the key facts were not reasonably discoverable at the time, a claimant may, in some cases, have additional time running from the date of knowledge and an overall “longstop” may apply. Limitation issues in Wills and estates can be complex because the loss may not crystallise until after death, probate, or the resolution of related disputes.

Where time is tight, parties sometimes agree a standstill while pre-action steps are followed, or proceedings may be issued and then stayed to allow the pre-action process to be completed.