Professional negligence claim time limit

[Falcon5]

Hello,

Would anyone be able to advise on the following scenario....

A Will dispute goes to court (challenging the validity of a Will). The claimant wins on the basis that the Solicitor who executed the Will did not do the proper checks regarding capacity.

1. Can the executors who defended the Will (and lost the court case) bring a professional negligence claim against the Solicitors who executed the Will for the errors that they made and the legal costs incurred?
2. If so, what time limit would the executors have to do this? (I have read that the primary limitation period for professional negligence claims is 6 years from the date of the negligence/loss).
3. Would the date of negligence be classed as the date the Will was executed or the date the negligence was actually proven in court?

Thanks for your time.

[Pezza54]

Hi
Under common law tort of negligence there is a 6 year time limit (primary limitation period) for a professional negligence claim from the date the loss occurred.
However there is a 15 year longstop limitation period for professional negligence claims. This means that if the will was negligently drafted over 15 years ago any claim for professional negligence will be time barred irrespective of when the claimant discovers the negligence.

[Falcon5]

PEZZA54 - thanks for responding.

The Will was executed in early 2018 which means the 6-year limit is approaching (early 2024). The dispute has not yet reached the litigation stage (and may never do so if a settlement is agreed upon - although that looks unlikely at the moment). My only concern is that if it DOES go to court in the future and it is proven that the Will is invalid (due to negligence on the part of the Will Solicitor), I will be out of time to bring a claim against the Solicitor if the 6-year rule applies. However, if I understand correctly, would I have until 2033 (15 year limit) to bring a potential claim?

[Pezza54]

Yes your last sentence is correct

[Falcon5]

Okay. Good to know that the limit is not approaching any time soon.

Thanks PEZZA54.

[atticus]

CORRECTION - POST #2 IS WRONG

There is no chance whatsoever of this limitation period being extended from 6 years to 15. The circumstances in which the 'latent damage' provisions apply: you are clearly aware now, within the 6 year limitation period, of the facts and matters that you consider amount to negligence.

You should assume that the 6 years run from the date of the will. If you cannot reach a settlement before then, you must issue your claim at court before that 6 year period expires.

[Falcon5]

Hello ATTICUS,

Just to clarify, the dispute is between one of the beneficiaries of the Will (who is claiming the testator lacked testamentary capacity) and the executors of the Will who are defending the wishes of the testator (I am one of the executors). The Solicitor who executed the Will is not directly involved at this stage although the letter of claim (pre litigation) is based around allegations that the Solicitor should have done more to check the testator’s capacity.

My question about bringing a professional negligence claim is only applicable IF the claimant (beneficiary) takes the dispute to court and wins (therefore proving that the Will Solicitor was negligent). The claimant has threatened litigation but nothing has been forthcoming up to now so there is a possibility that this scenario will never occur.

However, if negligence WAS proven in court, then in order to reserve my right to bring a claim (after the six years), could I put the Solicitor on notice (NOW) of a prospective negligence claim (so that they can refer this to their insurers) or enter into a “standstill” agreement to “freeze” the limitation clock?

Thanks in advance for any help/advice.

[atticus]

l cannot see how that argument can work on limitation. A standstill agreement might be a way forward, but I strongly recommend professional advice.

[atticus]

The limitation period is 6 years when the facts and matters giving rise to a claim are known within that time. I struggle to see that a court ruling will be what creates the cause of action. Surely the facts are known now. Has there been a Larke v Nugus letter?

[Falcon5]

Hello ATTICUS,

Yes, there was a Larke vs Nugus request a few years ago and the Will Solicitor provided a statement. The Will Solicitor's statement confirmed that there were no doubts as to the testator’s capacity, therefore a medical report was not required. However, a pre-action letter of claim followed shortly afterwards with allegations that the Solicitor had not been thorough enough as the testator was elderly, etc. Unfortunately, after receiving the Larke vs Nugus request, the Will Solicitor would not engage with us further (citing conflict of interest). I found another Solicitor to assist/advise on the dispute but had to stop after a couple of years after exhausting my savings. Now I'm on my own. Not sure if there is anything I can do myself with regard to reaching out to the Will Solicitor before the 6-year limit passes.

[EXC]

I don't know anything about the subject matter under discussion but I do know the legal experience, background and qualifications of atticus and would value his advice above anyone else who advises on the forum.

[atticus]

My final observation is this - if at all possible avoid taking risks with limitation. The safest course is always to issue before the earliest possible limitation date. If you issue your claim later, you risk having to face a limitation argument, which you may lose. You will be in the hands of the judge.

[Pezza54]

Please read the article "Invalid Wills -the challenge of proving lack of testamentary capacity" at www.kingsleynapleyco.uk which also refers to 2 court cases in 2013
Even if the claimant fails to prove that the testator did not have the mental capacity to make a will the Court may still uphold the claim that the will is invalid on the grounds of "want of knowledge and approval"
If the experienced solicitor drafted the will with professional care and skill expected, but the claim was upheld on the grounds of want of knowledge and approval, would a professional negligence claim against the solicitor succeed in court?

[atticus]

Your link didn't work. I assume you meant this: https://www.kingsleynapley.co.uk/ins...ntary-capacity

I have read it, thank you. I do not disagree with it.

It says nothing about limitation.

[Pezza54]

No just that OP, the executor, should be wary about starting a professional negligence claim and putting estate funds at risk should the claim fail..