It has become something of a phenomenon in recent times; the prevalence of the inheritance dispute.

During times of economic difficulty, every penny does count and it seems that the act of inheritance is now, more than ever, a source of funds that is expected, coveted, and depended upon. But when even modest estates are wrangled over as if the parties are fighting for billions, is there an increasing duty upon the Will writer to ensure that the wishes of the testator are not going to cause a dispute? Is this possible or even ethical?

Yes, a testator can be warned that if they cut their daughter out of the Will because she became a dancer rather than a doctor, said daughter is very likely to contest the Will. And an explanation to the client that a court may set aside the Will and award the daughter a portion of the estate under the Inheritance (Provision for Family and Dependants) Act 1975 may make them stop to think for a moment, but if the testator is determined to make such a provision, it is their right of testamentary freedom to do so. So, how fine is the line between allowing a client to write the Will they want to write and being professionally negligent?

Why might a Will fail?

A disputed Will may be set aside by the court on various issues. Primarily, these are:

• Inadequacy – Failure to take into account the fullness of an estate or consider certain outcomes.
• Legality – The provisions of the Will are potentially illegal.
• Errors in detail – Items, people and requests are left out of a Will in error or if the provisions are not described in enough detail.
• Inconsistency – The language and logic of the Will are contradictory or ambiguous.

Successful challenges to a Will by one party may be followed by a professional negligence claim against the practitioner or firm that prepared the Will by the party who has ostensibly lost out as a result of the ruling.

Genuine error or solicitor negligence?

It is possible to rectify some genuine mistakes made by a Will writer; a ‘clerical error’ – as defined in Wordingham v The Roll Exchange Trust Company as an error made in the process of recording the intentions of the testator – can be rectified if an application is brought within six months of Grant of Probate. Such errors should be clear and obvious, for example, the testator wanted to leave equal shares of the estate to his five children, but only four children were named on the Will in error.

Other failings may not be so easy, or possible, to rectify and harder to prevent. But the guidance for solicitors is clear. The issues that solicitors and law firms need to be aware of when drafting Wills for clients include:

• Testamentary capacity – If there is any doubt regarding whether a client has diminished mental capacity, a doctor’s opinion should be sought as evidence.
• Undue influence – Indicators include: the testator being dependent on the beneficiary either emotionally or physically, social isolation of the testator, recent family conflict, a new Will is made which conflicts with previous Wills, recent bereavement, testamentary changes are made alongside other changes such as to an LPA.
• Fraud, forgeries and scamming – These can be difficult to spot, especially if a firm provides online will writing services. Evidence of identity verification checks is hugely significant.
• Establishing the details – Ensure that all information is received in relation to estate assets and the client’s immediate family, and that this information is retained on file.
• Exclusions of family members – Record the reasons for exclusion of anyone who might reasonably expect to benefit from the estate. Record explanation of the possible implications.
• Timely drafting of Wills following instructions – Especially in time-sensitive situations, such as if the client is suffering from illness.
• Will drafting follow-up – If a client does not return the signed and witnessed version of their Will following drafting.

Suing the Will Writer

As the proclivity for contested Wills and probate continues, the contentious probate solicitor’s job will, as always, be to pick at the bones of the Will writer’s work.

Sadly, this cannot make the life of the solicitor for Wills any easier and we wonder, therefore, how long it will be before the reputation of a law firm will hinge on how many Wills they have prepared that have been set aside? In a world where even the most modest of estate might be fought over through the courts, will the strength of the Will writer soon become a review statistic on Trustpilot?