Solicitor Negligence Will UK (2026): Claims Against a Solicitor Who Failed to Draft or Execute a Will Properly

Yes — under the principle established in White v Jones [1995] AC 207 (House of Lords), a solicitor who is instructed to prepare or alter a will owes a duty of care not only to the testator (their client) but also to the intended beneficiaries of the will: (1) WHITE v JONES — THE FACTS: Mr Barratt was estranged from his daughters. After a reconciliation, he instructed solicitors to prepare a new will leaving legacies to each daughter. The solicitors delayed. Mr Barratt died before the new will was executed. The daughters received nothing under the original will. The House of Lords held that the solicitors owed a duty of care to the daughters — the intended beneficiaries — and were liable in damages for the value of the legacies they had lost; (2) THE LEGAL BASIS: the duty of care to intended beneficiaries is a specific extension of the Hedley Byrne principle (negligent misstatement causing pure economic loss). The solicitor, by accepting instructions to make a will, assumes responsibility to the intended beneficiaries to carry out the testator's instructions without undue delay or error. The solicitor 'holds themselves out' as undertaking the work and the beneficiaries are the people who will suffer if it is not done properly; (3) WHAT CONSTITUTES NEGLIGENCE: a solicitor may be liable for: (a) UNDUE DELAY in drafting or executing the will — failing to act promptly after instructions, causing the testator to die before the will is signed; (b) DRAFTING ERRORS — including a bequest that fails for uncertainty; a gift to a witness (void under Wills Act 1837 s.15); incorrect identification of beneficiaries or assets; omission of intended gifts; (c) EXECUTION ERRORS — failing to ensure the will is properly witnessed; failing to advise on the witnessing requirements; (d) FAILURE TO ADVISE on circumstances that invalidate a will (e.g. failure to advise that marriage will revoke the will; failure to advise that a specific gift may adeem); (4) THE TESTATOR'S ESTATE — SEPARATE CLAIM: the testator's estate may separately have a claim against the solicitor for the cost of putting things right (e.g. the cost of rectification proceedings). The beneficiary's claim under White v Jones is for their own economic loss — the lost legacy.

A claimant in a White v Jones solicitor negligence claim must establish: (1) INSTRUCTIONS WERE GIVEN: the claimant must show that the testator gave the solicitor clear instructions to include the claimant as a beneficiary in the will (or to vary the will in the claimant's favour). The solicitor must have accepted those instructions — a mere inquiry about will-making is not enough; (2) THE SOLICITOR FAILED TO ACT WITH REASONABLE CARE AND SPEED: the claimant must show that the solicitor failed to carry out the instructions with the care and speed that a competent solicitor would have used in the circumstances. In White v Jones itself, the solicitors took over two months to act on Mr Barratt's instructions — which was held to be an unacceptable delay given the testator's advanced age and illness; (3) CAUSATION — THE FAILURE CAUSED THE LOSS: the claimant must show that but for the solicitor's failure, the will would have been executed and the beneficiary would have received the legacy. If the testator would have changed their mind before death regardless of the solicitor's promptness, the claim fails; (4) THE CLAIMANT WAS AN INTENDED BENEFICIARY: the duty of care is owed specifically to the INTENDED beneficiaries — those the testator instructed should receive gifts. A person who had no instructions given in their favour cannot bring a White v Jones claim; (5) DAMAGES — THE VALUE OF THE LOST LEGACY: damages in a White v Jones claim are the value of the legacy that the claimant would have received under the will if it had been properly prepared. Where multiple beneficiaries lost legacies, each has their own claim for their individual loss. Where the negligent solicitor also failed to advise that the will would be revoked by marriage, the damages are the value of the estate that would have passed under the pre-marriage will.

Several recurring factual patterns give rise to solicitor negligence claims in the context of wills: (1) DELAY IN EXECUTING A NEW OR ALTERED WILL — THE WHITE v JONES SCENARIO: the most common claim. The testator gives instructions to make or alter a will; the solicitor delays; the testator dies before execution. Typical vulnerable scenarios: (a) an elderly or seriously ill testator who needs a new will urgently; (b) a testator who wants to add a new partner or remove an ex-partner following a relationship change; (c) a testator who reconciles with an estranged family member and wants to include them; (2) ATTESTATION/EXECUTION ERRORS: the solicitor fails to ensure that the will is properly witnessed, or witnesses it in a way that creates a conflict (e.g. a beneficiary's spouse witnesses, voiding that beneficiary's gift under s.15 Wills Act 1837). The intended beneficiary loses their gift through no fault of their own; (3) DRAFTING ERRORS — AMBIGUOUS OR VOID GIFTS: the will is executed but the gift fails because it is drafted in a way that is void for uncertainty, is incorrectly described, or misidentifies the beneficiary or the asset; (4) FAILURE TO ADVISE ON REVOCATION BY MARRIAGE: the solicitor prepares a will but fails to advise the testator that if they marry, the will is automatically revoked (Wills Act 1837 s.18). The testator marries, the will is revoked, and the estate passes under intestacy. The intended beneficiaries lose their legacy; (5) FAILURE TO ADVISE ON ADEMPTION: the solicitor drafts a specific bequest of identified property (e.g. 'my shares in XYZ Ltd') but fails to advise that if those shares are sold or converted during the testator's lifetime, the specific gift will adeem. The intended beneficiary receives nothing; (6) FAILURE TO COMPLY WITH GOLDEN RULE: for elderly or vulnerable testators, best practice requires the solicitor to obtain a brief medical assessment to confirm capacity. Failure to follow the golden rule may expose the solicitor to liability if the will is later challenged for testamentary incapacity.

Limitation and defences in will negligence claims require careful analysis: (1) LIMITATION PERIOD — LATENT DAMAGE ACT 1986: the primary limitation period under the Limitation Act 1980 for negligence is 6 years from the date of the breach. However, in will negligence claims, the cause of action typically does not arise until the testator dies — because it is only on death that the beneficiary suffers a loss. The relevant date for limitation is therefore typically the date of death; (2) LATENT DAMAGE — SECTION 14A: under s.14A of the Limitation Act 1980 (as amended by the Latent Damage Act 1986), the 3-year 'knowledge' period runs from when the claimant first has, or ought to have, the knowledge required to bring the claim. In will cases, this is usually the date the claimant discovers (or should have discovered) that: (a) they were named as an intended beneficiary in instructions given to the solicitor; (b) those instructions were not carried out; A claimant who only discovers the facts (e.g. from the solicitor's file obtained during litigation) after the primary 6-year period may rely on s.14A. There is also an absolute 15-year long-stop under s.14B from the date of the act of negligence; (3) DEFENCES AVAILABLE TO THE SOLICITOR: (a) NO INSTRUCTIONS: the solicitor denies receiving the relevant instructions — common where the testator gave instructions informally without a formal attendance note; (b) REASONABLE SPEED: the solicitor argues they acted with all reasonable speed — the delay was caused by the testator's own unavailability or change of instructions; (c) CAUSATION: the solicitor argues that the testator would have changed their mind before death regardless; (d) NO DUTY: if the claimant was not an intended beneficiary but a disappointed expectant, no duty is owed; (4) THE SOLICITOR'S PROFESSIONAL INDEMNITY INSURANCE: qualifying solicitors in England and Wales must maintain professional indemnity insurance. A successful claim is paid by the solicitor's PII insurer. If the firm has closed, the SRA's compensation fund may provide a remedy.

The White v Jones cases are almost always preventable by prompt action and good communication: (1) INSTRUCT A SOLICITOR IN WRITING: give clear, written instructions (by email or letter) specifying who should benefit and in what amounts. Written instructions create a paper trail that prevents disputes about what was agreed; (2) USE A DEDICATED WILL-WRITING APPOINTMENT: at the appointment, review the draft will carefully and sign it in the presence of two independent witnesses before leaving. A properly executed will at the end of a single appointment avoids any delay risk; (3) ACT URGENTLY IF YOUR HEALTH CHANGES: if your health deteriorates significantly, contact your solicitor immediately and ask for an urgent appointment. If you cannot attend the solicitor's office, ask for a home visit or hospital visit. Do not wait for the solicitor to contact you; (4) KEEP YOUR WILL UP TO DATE: review your will every few years, and after every major life event (marriage; divorce; birth of a child; significant change in assets; bereavement of a named executor or beneficiary). Many White v Jones claims arise because the testator waited too long to update an outdated will; (5) CONSIDER A DIY WILL KIT FOR SIMPLE ESTATES: for straightforward estates with clear wishes, a properly prepared DIY will kit (such as the WillSafe UK kit) enables you to execute your will immediately — without any delay by a third party. A simple will executed today is worth more than a complex professionally-drafted will that is never completed; (6) RETAIN A COPY OF YOUR INSTRUCTIONS: if you give instructions to a solicitor by letter or email, keep copies. If the worst happens and the solicitor fails to act, your written instructions are the evidence that brings a White v Jones claim.