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In this article Senior Litigator at Healys LLP, Ben Parr-Ferris, discusses what you need to know when exploring a professional negligence claim in relation to Wills and Probate.
Negligence cases can cover some aspects of probate and the administration of estates. Any professional who deals with wills or estates must do so with reasonable skill and care, and if they make mistakes that cost their clients or others money, then claims can be brought against them.
One of the most common claims relating to professional negligence in estates is a claim against the professional who drafted the will for failing to do so properly. If the lawyer failed to follow the instructions of the testator, or did not advise the testator properly, then the beneficiaries of the will can claim against the professional if they have lost out. These cases can be brought against solicitors, or against non-solicitor will writing firms.
Case example:
Sally had made a will through her solicitors that left her only significant asset, her home, to her friends Margaret and John. After she had made her will, she moved home, but the will only referred to the address of her previous home because the solicitors had not drafted the will so that Sally’s home at the time of her death went to Margaret and John.
After Sally died, her home went to some distant relatives, and Margaret and John received nothing. Healys brought a claim against the solicitors who drafted the will. Margaret and John received a substantial pay-out from the solicitors’ insurance company, even though the usual 6 year period for bringing negligence claims had expired.
Anyone who administers an estate for payment has to undertake that task with reasonable care and skill. That applies whether the person is a solicitor, or some other professional who claims to be able to administer estates professionally. Solicitors and some accountants can deal with estates even if they are not the executors, but any professional person can be appointed as executor.
Case example:
In an estate involving a farm, professional administrators, who were not solicitors, had been appointed as executors. They allowed one beneficiary to take occupation of the farm and sell off assets for his own benefit, and keep the income from the farm. The executors failed to take an inventory of the assets at the farm and failed to investigate the deceased’s finances properly, so that there were substantial penalties payable to HMRC because the inheritance tax paid was insufficient.
Healys advised Henry, who was another beneficiary in the estate, relating to the claims available against the executors. The executors were liable to Henry for wasting the estate; they had allowed the amount in the estate to be reduced by their own actions, which entitled Henry to recover a substantial settlement.
Failing to bring a claim against an estate properly can give rise to another claim, this time against the solicitor who brought the first claim.
Case example:
Marvin was an employee of the deceased, but had been promised payment from the deceased’s estate. He instructed another firm to claim his back pay from the estate, and whilst he made a recovery from the estate for some of what was owed, the settlement had not been in accordance with Marvin’s instructions.
Healys took instructions from Marvin, and assisted him in bringing a claim against the solicitors who had handled the first claim, seeking the difference between the actual settlement and the amount Marvin should have received.
If you think that you have lost out because of the way a professional has dealt with an estate, please contact Healys LLP’s Professional Negligence experts today at enquiries@healys.com
