Professional negligence claims—Will drafting
Published by a LexisPSL Private Client expert
Last updated on 23/06/2022

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Professional negligence claims—Will drafting
  • Professional negligence claims
  • The duty of care
  • Historic position
  • White v Jones
  • Breach
  • Causation, nexus and remoteness
  • Mitigation
  • Limitation
  • Procedure

Professional negligence claims—Will drafting

This Practice Note sets out the basis for professional negligence claims by disappointed beneficiaries against the draftsperson who drew up the relevant Will.

Professional negligence claims

In broad terms, in order to succeed in a negligence action a claimant must show that the:

  1. defendant owed a duty of care to the claimant

  2. defendant breached their duty by an act or omission

  3. loss for which the claimant seeks damages was caused by the act or omission, there is a sufficient nexus between the loss and the act or omission and the loss is not too remote

  4. loss is not vitiated by another factor such as a failure to mitigate

Any claim must also be brought within the relevant limitation period.

For further details, see Checklist: Professional negligence claim—scope of duty, causation and remoteness and Practice Note: Bringing a professional negligence claim based on the duty in contract, tort and equity (available subject to subscription).

The duty of care

Historic position

The historic position was that a beneficiary could have no cause of action in relation to mistakes in the preparation of a Will due to privity of contract. A solicitor owed a duty to their client, the testator, and not to the beneficiaries of the testator’s estate.

In Robertson v Fleming, the House of Lords endorsed (obiter dicta) this restrictive approach. Lord Campbell LC said that a disappointed beneficiary could not

Related documents:
Key definition:
Negligence definition
What does Negligence mean?

Negligence is 'the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do' (Blythe v Birmingham Waterworks (1856) 11 Exch 781, at p 784). It is accepted that the test for breach of duty is objective, in the sense that the individual character and mental and physical features of the particular defendant are usually irrelevant.

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