In its latest review of the PII market, Locktons Solicitors makes clear it is expecting an increase in insurance claims because of the rise in work for the sector (undoubtedly partly due to the pandemic). It also notes that contentious work is generally growing across the legal profession and in particular, contentious probate. Wills, trusts and probate was already a particular risk area for insurers.

It goes on: “Naturally, this means that practices are getting probate work wrong. When you factor in that, according to the Office of National Statistics, pre-pandemic wealth and assets have been steadily increasing, it stands to reason that getting this wrong could prove incredibly costly.

“With modern day families increasing in their complexity, this is becoming a much more difficult practice area and perhaps one where more care needs to be taken at the outset in the drafting of a will.”

Lessons

We could leave this sharp warning to speak for itself – but a reminder of a few rulings may drive home the importance of exercising caution at each step.

The will must reflect clients’ instructions – That sounds obvious but where more than one fee earner is involved, make sure there is not a breakdown in communication or a failure to understand what the client’s instructions are. In Mundil-Williams v Williams 2021 EWHC 586, the will was declared invalid for want of knowledge and approval because of a drafting error. The will as finally drafted did not reflect T’s original intentions and there was confusion around his contentions, which were never clarified between the fee earners.

Ensure necessary steps are carried out to protect the client’s and beneficiaries’ interests – In Gosden v Halliwell [2021] EWHC 159, the solicitors failed to register a restriction on the registered title – which led to the property being sold without the trustees’ knowledge.

Exercise due diligence and avoid unnecessary delays in estate administration – In Gaskin v Chorus Law Ltd & Anor [2019] EWHC 616, a probate firm was ordered to pay half the claimant’s costs where its delay had caused significant problems for beneficiaries.

Double check final draft wills and trust documents – Clerical errors such as typographical mistakes are easy to make and can be costly to resolve. In Marley v Rawlings [2014] UKSC 2, the husband had signed his wife’s mirror will, and vice versa. A simple but avoidable mistake reached the Supreme Court, which decided the wills were capable of rectification.

Record T’s reasons for excluding adult children – The courts have been increasingly willing to allow inheritance claims by adult children who are excluded from a parent’s will or who believe they have not been granted adequate provision. As a matter of course, practitioners should be discussing these issues with their wills clients. If an adult child is to be excluded, solicitors should keep a careful note of the reasons for doing so in case a claim arises in future.

Video-witnessing

A final note on the temporary relaxation of the rules on the valid execution of wills in the covid-19 era – claims are undoubtedly going to arise in this area.

Practitioners must continue to exercise care when advising clients how their will is to be executed remotely, paying attention to the specific provisions of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 and to the Law Society’s guidance on video-witnessing wills. https://www.lawsociety.org.uk/en/topics/private-client/video-witnessing-wills