Will-writing and negligence

As we progress into the new year and the recent festivities become a dim and distant memory, many private client departments will be preparing for the usual seasonal influx of clients carrying out their new year’s resolution to get their will drafted or updated.

The number of people in society who do not have a will drafted is frankly, alarming. The Law Society recently released statistics following research carried out on its behalf in 2014, which revealed that 73% of 16-54-year-olds do not have a will. It appears that the greatest single reason that people do not make a will is because they do not believe they have anything worth leaving.

It is clear that a significant number of people simply have no estate planning in place. In growing number, however, people will instead have a will drafted without the use of a solicitor. These wills are either template ‘DIY’ versions, or those drafted by unqualified, unregulated and occasionally uninsured members of the public offering a potentially cheaper option than a local high street firm.

The Legal Ombudsman reported that research suggested up to 180,000 wills are drafted by non-lawyers each year.

Inevitably, the winter months also, unfortunately, lead to a rise in mortality rates. In common with other countries, in England and Wales more people die in the winter than in the summer. The Office of National Statistics provides figures for these deaths (known as excess winter deaths or excess winter mortality). In the winter of 2013/14, 11.6% more people died in the winter months compared with the non-winter months. 

This sees the level of probate work increasing and it is often at this time that errors in the drafting of a will, or negligent advice given become apparent. Where property and large financial assets are being disposed of, if a negligent claim arises, inevitably it will be costly and time consuming for a firm to deal with.

The increased profile of the Legal Ombudsman in the public consciousness and/or a firm’s complaint’s procedure means that many complaints are referred to and, hopefully, resolved by the LeO. The Legal Ombudsman resolved 1,013 wills and probate-related complaints in 2013-14, which equates to 12.7% of the total complaints resolved. Some 18% of wills and probate-related complaints in this area were about costs; 12% were due to delays, 12% failure to follow instructions and 12% failure to advise. 55% of the wills and probate complaints that the Legal Ombudsman resolved in 2013-14 were done so informally.   

Interestingly, a remedy was required in around 72% of the wills and probate-related complaints that the ombudsman reviewed, which is a significant proportion and one which perhaps reflects the ease at which issues can arise in this type of work. Typically, the claims can arise from poorly drafted wills or trusts; negligent probate or tax advice and lost wills. In addition, the consequence can be a contested probate claim, as disputes arise between executors or beneficiaries.

Of course, it will not be possible or suitable for the Legal Ombudsman to resolve a proportion of complaints and inevitably, some of those complaints will escalate to become professional negligence claims. I have spent many years as a solicitor running such claims and in my experience, after conveyancing matters, will and probate claims constitute the second most common type of claim brought against solicitors.

The ombudsman recently pushed for non-lawyer will-drafters to be included within its regulatory remit, a suggestion which has been rebuffed by both Chris Grayling and the SRA. There are arguments both ways for regulation of wills and estate planning from non-lawyers. I would support a greater drive from the government to give consumers a better understanding of the importance of drafting a will, having a will drafted correctly and by a suitably qualified practitioner.

It is crucial that a will leaves nothing to interpretation, as any ambiguity could lead to dispute or litigation, which is the point that I am often instructed. 

Perhaps more could be done by the SRA nationally, and by firms locally to increase awareness of this issue. The ‘Will Aid’ scheme of November 2014, reported on previously in the Gazette is a start but is simply not enough to attract clients back to high street firms. These efforts are, unfortunately, just a small drop in the ocean when attempting to affect the national consciousness, not only on the requirement of a will, but also the importance of having one drafted by an experienced professional.

Such an experienced professional could well be a ‘non-lawyer’. If this is to be the case, however, arguably further steps should be taken made by Mr Grayling to ensure they have the appropriate professional indemnity insurance in place. It remains to be seen whether a gradual increase in wills being drafted by non-lawyers produces an increase in disputed probate and negligence claims generally. 

Andrea Rasmussen is associate solicitor and team leader, professional negligence team at Colemans-ctts