Negligence in Drafting of Wills

Negligence in Drafting of Wills

In some circumstances, a person might die without a Will or their Will might contain a mistake or be invalid through no fault of their own. This might occur where a lawyer fails to prepare their Will quickly enough in urgent circumstances (for example, if they are due to travel overseas or have a terminal illness) or where the lawyer makes a mistake when preparing the Will.

If a Will contains a mistake or is invalid for any reason, the Court has power to approve or rectify it in certain circumstances. Similarly, if a person dies before their Will is prepared, their instructions to their lawyer can sometimes be approved by the Court as their Will. However, if an invalid Will or instructions cannot be approved or rectified by the Court, the deceased person’s assets may have to be distributed according to an earlier Will or the rules of intestacy. If that happens, the intended beneficiaries under the proposed Will will not receive their entitlement and may be entitled to seek compensation from the lawyer involved.

If the Will can be approved or rectified, the solicitor may be liable to pay the beneficiaries’ costs of the Court proceedings to rectify or approve the Will. If the Will cannot be approved or rectified, the lawyer may be liable to compensate the beneficiaries by paying an amount of money equal to the entitlement that they would have received, if the Will had been prepared correctly.

There are strict time limits that apply when bringing a claim for negligence against a lawyer.

If you need advice about your rights as a beneficiary, please contact one of our friendly Estate Litigation Team on +61 7 3001 2999 for a free, no obligation appraisal.