Hi all,
Are there any cases where the failure to provide for a replacement property in a will (where there is either a specific gift of main residence outright or on a life interest) and failure to advise the client on this point has led to successful negligence claims against the will writers.
Many thanks
I do not know of any specific cases. I would consider myself negligent if I did not seek instructions on the point and I would expect any good set of precedents to cover it.
The liability of the will writer will depend on what terms and conditions (possibly vestigial) apply to the contract for services (equivalent to a solicitor’s retainer and engagement letter) as well as on tort. It is not proportionate to the fee. The standard of care should not be affected by lack of experience or qualifications any more than would a plumber’s. Whether the will writer is worth suing will be a factor.
With a specific gift, subject to s33 WA 1837, ademption is a truly possible outcome legally. The risk of and remedy for Ademption is entry level succession law. The definition of the “main residence” can be crucial. A testator will usually, and should be asked to, confirm with clarity whether that is to be a named property or the main residence of himself or the donee at the date of death etc. etc.
If the property is clearly identified and is left on trust the PRS/trustees will have the powers over land under Trustee Act 2000 and TOLATA 1996 to provide such a replacement, unless the will clearly provides to the contrary. If not so identified the trust will fail for lack of certainty. Sometimes only a right to reside is given rather than a life interest, often a tricky matter of construction. If a life interest is indeed given only a very specific counter direction in the will is likely to rule out a power to provide a replacement.
We live in a consumer rights age with wide access to relevant information and so my sympathy for those who purchase services purely on cost is very limited unless they are vulnerable. Same for Scams. Most Will writers however deserve to end up in one of the 9 circles of Dante’s Inferno
Jack Harper
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Thank you for your reply. I haven’t found any cases on the point either. I found your reply amusing. I thought it odd that it needed to be moderated/reviewed.