Avoiding negligence in wills and probate practice
Produced in partnership with Kate Salter of Kingsley Napley
Avoiding negligence in wills and probate practice

The following Practice Compliance practice note Produced in partnership with Kate Salter of Kingsley Napley provides comprehensive and up to date legal information covering:

  • Avoiding negligence in wills and probate practice
  • Issues around the scope of the retainer
  • Managing duties to beneficiaries
  • Failures relating to instructions
  • Advice errors
  • Drafting errors
  • Fraud
  • Delay
  • Failure to consider the testator’s capacity or undue influence
  • Failure to comply with formalities
  • More...

Solicitors in any field of practice are under a duty to exercise reasonable care and skill when acting for clients. In wills and probate practice, that duty also extends to the beneficiaries of a testator. A breach of that duty, which causes loss to the client, could result in a professional negligence claim.

Practitioners in wills and probate practice can face particular challenges when acting for elderly clients, where issues around capacity and/or undue influence might be present. Professional negligence claims in this field can be high in quantum, particularly where valuable estates are involved, so solicitors should be aware of the risks and the steps they should take to reduce the potential for future professional negligence claims.

This Practice Note looks at some of the common ways in which negligence claims arise for solicitors in wills and probate practice and offers practical tips on how to minimise the risks in the following key areas:

  1. issues around the scope of the retainer

  2. managing duties to beneficiaries

  3. failures relating to instructions

  4. advice errors

  5. drafting errors

  6. fraud

  7. delay

  8. failure to consider the testator’s capacity or undue influence

  9. failure to comply with formalities

  10. errors in estate administration

Issues around the scope of the retainer

You should prepare a clear, written letter of engagement at the outset of every instruction, setting out the scope of the services agreed with the client. It

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