Liability of solicitor or will writer

[crowlad]

If the person making a will does not have the mental capability can the solicitor or unregulated will writer who helped them be sued for negligence? Would the same apply if the will was done with a DIY will pack such as lawpack?

[Wombats]

Re: Liability of solicitor or will writer

This doesn't actually answer your question, but it establishes some 'ground rules':

http://www.wills.org.uk/mental-capac...-will-writing/

In brief:

1. They must understand that they are making a Will,
   
2. They must be aware of the extent of their assets that they are leaving in the Will,
   
3. They must be aware of those people that they should morally provide for, especially if they are disinheriting that person; and
   
4. That they must not be suffering from any mental condition that has adversely effected their decision
   
   

[leclerc]

Re: Liability of solicitor or will writer

And ultimately the will would be challengeable in court because of the issue of mental capacity as outline above by Wombats

[des8]

Re: Liability of solicitor or will writer

Probably?
Solicitor /will drafter has a duty of care to his client, and surely that must extend to taking reasonable steps to ascertain that the testator has capacity.
Solicitor/will writer also has a duty of care to the beneficiaries of a will (White v Jones [1995] UKHL 5). So if a beneficiary suffers loss because of the solicitor's / will writer's negligence, they could be sued.

DIY using lawpack..... don't see where negligence can creep in.

[Wombats]

Re: Liability of solicitor or will writer

I think with a DIY will pack, it is generally regarded as only suitable for a very basic will (leaving everything to an only child etc...)

If it involves inheritance tax, passing on a business, foreign investments or anything more complex, then I think maybe a DIY will may be challenged. There are also strict conditions for witnessing of wills, so while it could in theory be written on a scrap of paper and witnessed properly, it doesn't mean it's a good idea.

There may also be an element of medical records showing the person who wrote the DIY will did not have the capacity to do so, so I imagine it is an area which could again be challenged.

I don't know any of this for sure, I'm just trying to extrapolate a 'normal will' to a DIY one and trying to look for possible flaws.

[wales01man]

Re: Liability of solicitor or will writer

If a will has to be witnessed by 2 people they unless there is a conspiracy must be signing knowing that the person is infact mentally capable of knowing what they are putting in the will.
Having no experience of wills do not the witnesses have to at least see the person whose will they are witnessing

[enaid]

Re: Liability of solicitor or will writer

Had it been proven that the person who made the will lacked capacity at the time they made the will?
Has anyone got a Lasting Power of Attorney on the person ?

[des8]

Re: Liability of solicitor or will writer

If a will has to be witnessed by 2 people they unless there is a conspiracy must be signing knowing that the person is infact mentally capable of knowing what they are putting in the will.
Having no experience of wills do not the witnesses have to at least see the person whose will they are witnessing

All that witnesses do is to see the act of signature and add their details to prove it. They do not have to be aware of the will's content, must not be beneficiaries nor members of the family.
The testator's capacity is of no concern to a witness. They witness only the testator's signature