Avoiding negligence in wills and probate matters
Avoiding negligence in wills and probate matters

The following Practice Compliance guidance note provides comprehensive and up to date legal information covering:

  • Avoiding negligence in wills and probate matters
  • Getting the retainer right
  • Managing duties to beneficiaries
  • Capacity issues
  • Fraud
  • Drafting
  • Execution formalities
  • Gifts
  • Time
  • Missing wills
  • more

Poor quality instructions, delay, failure to properly assess capacity, drafting errors and confusion over the scope of the retainer are all strong contributors to negligent performance by lawyers.

Claims against wills and probate lawyers tend to be low in frequency but high in quantum and the sums involved can be significant. House price rises are bolstering the size and value of estates and an increasingly elderly population presents challenges to lawyers and medical practitioners who must assess capacity and consider any undue influence that might be relevant. Lawyers need to be aware of these risks and the steps they might take to lower their exposure to future claims.

This Practice Note discusses typical pitfalls in wills and probate practice and how to avoid them.

Getting the retainer right

Well-documented terms of engagement are a key risk management tool in reducing the financial impact of negligence claims against lawyers. This is particularly true for wills and probate lawyers, where unclear or absent terms of engagement can lead to lawyers taking on unintended duties such as in relation tax planning advice, or incurring liabilities to disappointed beneficiaries (see below).

A letter of engagement (preferably signed by the client) provides powerful evidence of the scope of services agreed, setting parameters on the duties owed, as well as including key exclusions and other limits on liability (such