When someone dies and their will does not say what they wanted, the people who lose out are often not the solicitor's client. This guide explains when a solicitor who prepared a will can be liable to a disappointed beneficiary, the common types of mistake, how rectification of a will fits in, and who can bring a claim. It explains how the law works; it does not say what any claim would recover. For the wider picture, see the overview of claims against your own solicitor.
The duty to an intended beneficiary
A solicitor's contract is with the client: the person making the will, called the testator. Once the testator has died, the estate usually has suffered no loss from a will that went wrong, because the money has simply gone to someone else. The person who has lost out, the intended beneficiary, was never the client.
In White v Jones [1995] 2 AC 207 the House of Lords, by a majority of three to two, held that the law should fill that gap. Lord Goff described the "extraordinary fact" that without a duty, the only people who might have a claim "have suffered no loss, and the only person who has suffered a loss... has no claim". He held that the solicitor's responsibility to the client "should be held in law to extend to the intended beneficiary" who may be deprived of an intended legacy "in circumstances in which neither the testator nor his estate will have a remedy against the solicitor."
There are limits. Lord Goff said liability will not arise where the defect comes to light before the testator dies and the testator leaves the will as it is. And the duty is not a guarantee: in Carr-Glynn v Frearsons (Court of Appeal, 1998), Chadwick LJ said the duty owed to a specific legatee "is not a duty to take care to ensure that the specific legatee receives his legacy. It, also, is a duty to take care to ensure that effect is given to the testator's testamentary intentions."
Common mistakes
Delay before the testator died
White v Jones itself was a delay case. A father who had cut his two daughters out of his will was reconciled with them and sent instructions for a new will, which the firm received on 17 July 1986. The new will had not been prepared when he died on 14 September 1986. The House of Lords upheld the daughters' claim.
What counts as unreasonable delay depends on the circumstances, including the testator's age and health, and later cases have gone both ways on their facts.
Signing and witnessing
Under section 9 of the Wills Act 1837, a will is valid only if:
- it is in writing and signed by the testator (or by someone else in their presence and at their direction);
- it appears the testator intended by the signature to give effect to the will;
- the signature is made or acknowledged in the presence of two or more witnesses present at the same time; and
- each witness signs, or acknowledges their signature, in the testator's presence.
For wills made between 31 January 2020 and 31 January 2024, "presence" could include presence by video link (section 9(2)).
A will that misses one of these steps is not valid. A firm that receives back a signed will may be expected to check that it was properly executed; in Humblestone v Martin Tolhurst Partnership [2004] EWHC 151 a firm was liable where a will returned as executed had not been signed.
A beneficiary or their spouse as a witness
Under section 15 of the Wills Act 1837, a gift to a person who witnesses the will, or to that person's husband or wife, is "utterly null and void" as far as that person is concerned, although the witness can still prove the will. The Civil Partnership Act 2004 (Schedule 4, paragraph 3) applies the same rule to a witness's civil partner. Under section 1 of the Wills Act 1968, the rule does not bite if the will is validly executed without that witness, for example where two other independent people also witnessed it.
Ross v Caunters [1980] Ch 297, the first English case to allow a disappointed beneficiary to sue the testator's solicitor, also concerned a will that had not been properly witnessed.
Drafting that does not achieve the testator's aim
A will can be validly signed and still fail to carry out the instructions: a gift left out, or a gift of property the testator could not leave by will. In Carr-Glynn, a testatrix wanted to leave her half of a jointly owned property by her will. There was doubt about whether the property was held as joint tenants, and the firm was held liable for failing to advise her to serve a notice of severance (a notice ending the joint tenancy, so that her share could pass under her will).
Rectification: correcting the will itself
Under section 20 of the Administration of Justice Act 1982, the court can order a will to be rectified (corrected) if it fails to carry out the testator's intentions because of:
- a clerical error; or
- a failure to understand the testator's instructions.
An application must not be made, except with the permission of the court, more than six months from the date on which representation (usually the grant of probate or letters of administration) is first taken out. Rectification corrects a document intended to be a will so that it carries out the testator's intentions. The Supreme Court has said this can extend to a document that is only formally valid once rectified (Marley v Rawlings [2014] UKSC 2). It cannot help where no will was ever drawn up or signed, as in White v Jones.
Rectification first, then the solicitor?
A claimant must act reasonably to limit their loss. In Walker v Geo H Medlicott & Son [1999] 1 WLR 727, a claim that a gift of a house had been left out of a will, the Court of Appeal said that "as a general rule, the courts can reasonably expect the plaintiff to mitigate his damage by bringing proceedings for rectification of the will, if available, and to exhaust that remedy before considering bringing proceedings for negligence against the solicitor."
Who can bring a claim
- The disappointed beneficiary, under the White v Jones principle, for the benefit they would have received had the will been done properly.
- The estate, through the executors or administrators, where the negligence caused loss to the estate itself, for example negligent advice to the testator during their lifetime.
Where both have a possible claim, the courts have been careful that the solicitor does not face double liability for the same loss.
A complaint to the firm or the Legal Ombudsman is a separate route: see complaining about a solicitor. The deadlines for a court claim are covered in time limits for solicitor negligence claims.
What a solicitor will want from you
- A copy of the will, any earlier wills, and the grant of probate or letters of administration with its date.
- Any evidence of the testator's instructions: letters, emails, notes, or what they told family or friends.
- The dates the testator contacted the solicitor and the date of death.
- Details of who witnessed the will, and any relationship to beneficiaries.
- Correspondence with the firm and with the executors since the death.
- Whether anyone has applied, or been asked, to rectify the will.
This guide is general information about the law of England and Wales. It is not legal advice. The six-month period for applying to rectify a will runs from the grant of representation, so the dates in the documents matter.
Frequently asked
Can I sue my late parent's solicitor if I was not the client?
In some circumstances, yes. In White v Jones the House of Lords held that a solicitor's responsibility to the person making the will can extend to an intended beneficiary who loses a legacy because of the solicitor's negligence, where neither the testator nor the estate has a remedy. The beneficiary must show what the testator intended and that the solicitor's mistake caused the gift to fail.
What happens if a beneficiary witnessed the will?
Under section 15 of the Wills Act 1837, a gift to a witness, or to the witness's spouse or civil partner, is void, although the rest of the will stands. Under the Wills Act 1968 that rule does not apply if the will was validly witnessed by two other people who were not beneficiaries or their spouses.
How long is there to apply to rectify a will?
Under section 20 of the Administration of Justice Act 1982, an application should be made within six months from the date the grant of representation is first taken out. A later application needs the court's permission.
Do I have to try rectification before suing the solicitor?
As a general rule, yes, if rectification is available. The Court of Appeal in Walker v Geo H Medlicott & Son said the courts can reasonably expect a beneficiary to seek rectification of the will and exhaust that remedy before suing the solicitor, as part of the duty to limit the loss.