---
title: "Negligent Will Writing: Can You Claim for a Defective Will?"
url: https://professionalnegligenceclaimsolicitors.co.uk/negligent-will-writing-claim-defective-will/
date: 2026-10-15
modified: 2026-10-15
lang: en
author: "pncs"
description: "Yes. If a solicitor or will writer prepared or supervised a will so badly that a gift meant for you failed, you can usually sue them for the value of what you lost, even though you were never their client. The qualification is that the court expects you to try any cheaper rescue first, such as rectifying the will, and one of the time limits starts running on the day the will is signed, which can be many years before the death."
categories:
  - "Legal Negligence"
  - "Negligent Solicitor"
  - "Third party claims"
  - "Uncategorized"
tags:
  - "defective will"
  - "disappointed beneficiary"
  - "negligent will writing"
  - "rectification of will"
  - "section 15 Wills Act 1837"
  - "section 18 Wills Act 1837"
  - "section 20 Administration of Justice Act 1982"
  - "section 9 Wills Act 1837"
  - "solicitor negligence"
  - "will writer negligence"
image: https://professionalnegligenceclaimsolicitors.co.uk/wp-content/uploads/Tied-Documents-and-Fountain-Pen-1024x576.png
word_count: 2413
---

# Negligent Will Writing: Can You Claim for a Defective Will?

**Yes. If a solicitor or will writer prepared or supervised a will so badly that a gift meant for you failed, you can usually sue them for the value of what you lost, even though you were never their client. The qualification is that the court expects you to try any cheaper rescue first, such as rectifying the will, and one of the time limits starts running on the day the will is signed, which can be many years before the death.**

The people who ask us this are usually adult children and long-term partners who expected a house or a share of the estate and learned after the funeral that the gift had failed. Most assume they can only pursue other family members, or that nobody can be blamed because the drafter was working for the deceased. For a negligently prepared will, both assumptions are wrong.

# Who can sue when a will goes wrong?

The general rule is that only a client can sue a professional, and in a will case the client has died. English law makes an exception for will preparation. In *White v Jones* [1995] 2 AC 207, which we discuss in [our guide to whether a third party can sue a professional for negligence](https://professionalnegligenceclaimsolicitors.co.uk/can-a-third-party-sue-a-professional-for-negligence-advice/), the House of Lords allowed a disappointed beneficiary to recover the legacy lost because the testator's solicitor delayed in drawing up the will. The duty rests on the drafter's assumption of responsibility for the task, and it is generally recognised only where the beneficiary has no other remedy for the loss.

Two different people may have a claim. The intended beneficiary sues in negligence for the gift that failed. The executors can sue on the drafter's contract with the deceased for losses falling on the estate itself, such as tax that careful drafting would have avoided. Our guidance on [who can bring a professional negligence claim](https://professionalnegligenceclaimsolicitors.co.uk/start-professional-negligence-claim-standing-sue-legal-solicitor-claimant-advice/) covers standing in more detail, and the court will not let the drafter pay twice for the same loss.

### Want legal advice on the merits of your case?
Your legal enquiry goes immediately to our PN litigation team in Middle Temple, London. We can't take on low value cases or give free legal advice - our minimum fee is £1750 +VAT for a conference with a solicitor and barrister. Call us on +442071830529.

[Check My Case Now ✔](https://professionalnegligenceclaimsolicitors.co.uk/litigation-case-assessment-form/)

# The mistakes that most often defeat a gift

Formal validity comes first. Section 9(1)(c) of the Wills Act 1837 requires the testator's signature to be "made or acknowledged by the testator in the presence of two or more witnesses present at the same time", and each witness must then attest or acknowledge in the testator's presence. A drafter who posts a will out for home signing without clear instructions, or supervises a signing at which one witness arrives late, can leave a document that fails on death. The intestacy rules then decide who inherits, and our note on [the Inheritance and Trustees' Powers Act 2014 and the intestacy rules](https://lexlaw.co.uk/practice-areas/probate-solicitor-london/inheritance-trustees-powers-act-2014/) shows how far that outcome can drift from the testator's wishes.

Delay is the other classic failure. A will writer who lets a draft sit for weeks while the client is elderly or seriously ill runs the risk that cost the solicitor in *White v Jones*. Poor drafting follows close behind, from an ambiguous residuary clause to wording that does not match the instructions on file. Our guide to [breach of duty in professional negligence](https://professionalnegligenceclaimsolicitors.co.uk/breach-of-duty-explained-professional-negligence-guide/) explains the standard the court applies.

# A witness who benefits loses the gift

Section 15 of the Wills Act 1837 is unforgiving. If a beneficiary witnesses the will, or the beneficiary's spouse does, section 15 makes the gift to that beneficiary "utterly null and void", although the rest of the will stands. The Civil Partnership Act 2004 applies the same rule to civil partners. A drafter who lets a beneficiary's husband sign as witness has very little room to argue about breach, and our page on [claims against negligent solicitors and law firms](https://professionalnegligenceclaimsolicitors.co.uk/sue-negligent-solicitor-law-firm/) shows how these claims are usually brought.

There is one escape route. Section 1 of the Wills Act 1968 disregards the attestation of a benefiting witness where the will is validly executed without that witness and without any other benefiting witness, so a third, independent witness can save the gift. Otherwise the beneficiary's remedy lies against whoever arranged the signing, and our explanation of [how compensation is calculated in a professional negligence claim](https://professionalnegligenceclaimsolicitors.co.uk/how-is-compensation-calculated-in-a-professional-negligence-claim/) shows how the lost gift is valued.

# Marriage, joint property and other traps outside the document

Some of the most expensive mistakes involve advice the drafter never gave. Section 18(1) of the Wills Act 1837 provides that "a will shall be revoked by the testator's marriage", unless section 18(3) applies because the will shows the testator expected to marry a particular person and intended the will to survive it. The Law Commission has recommended reform, yet in October 2026 section 18 is unchanged. A client who mentions a forthcoming wedding should be told, and our article on [a solicitor's duty to warn clients of risks](https://lexlaw.co.uk/solicitors-london/lawyers-professional-negligence-claims-solicitors-duty-to-warn-clients-advice/) explains when a failure to warn becomes negligence.

Jointly owned homes cause similar trouble. A house held by beneficial joint tenants passes to the survivor whatever the will says, so a testator who wants to leave a share to children from an earlier relationship must first sever the joint tenancy, which section 36(2) of the Law of Property Act 1925 allows by "a notice in writing of such desire". A drafter who takes those instructions and never deals with severance may be liable for the share that passed outside the will, subject to the limits explained in [our page on recoverable damages in professional negligence claims](https://professionalnegligenceclaimsolicitors.co.uk/recoverable-damages-in-professional-negligence-claims/).

# Will writers are not regulated like solicitors

Anyone in England and Wales can charge for writing a will. Section 12(1) of the Legal Services Act 2007 lists the reserved legal activities, and will writing is not among them; the nearest entry, "probate activities", is limited by Schedule 2 paragraph 6 to preparing papers "on which to found or oppose" a grant. A claim against an unregulated will writer still rests on the ordinary law of negligence, as our guidance on [which professionals you can bring a negligence claim against](https://professionalnegligenceclaimsolicitors.co.uk/start-professional-negligence-claim-standing-sue-legal-solicitor-claimant-advice/) explains.

The difference shows when you try to collect. A solicitors' firm must carry professional indemnity insurance, and our page on [claiming after a solicitor's firm has closed or collapsed](https://professionalnegligenceclaimsolicitors.co.uk/solicitors-firm-closed-or-collapsed-can-you-still-claim/) explains run-off cover. A will-writing company may hold no cover at all, so if it has stopped trading, check its status using [our](https://windinguppetitionsolicitors.co.uk/how-to-check-whether-a-company-is-in-an-insolvency-process/) [guide to checking whether a company has entered an insolvency process](https://windinguppetitionsolicitors.co.uk/how-to-check-whether-a-company-is-in-an-insolvency-process/). Where an insolvent drafter was insured, section 1(2) of the Third Parties (Rights against Insurers) Act 2010 provides that its rights under the policy "are transferred to and vest in" the claimant, as [our page on claiming against an insolvent professional's insurer](https://professionalnegligenceclaimsolicitors.co.uk/insolvent-professional-claim-against-their-insurer/) explains. Without insurance you rank as an unsecured creditor, a position covered in [our guide to creditor rights in UK insolvency](https://windinguppetitionsolicitors.co.uk/creditor-rights-in-uk-insolvency-an-all-encompassing-guide-for-2025/).

# Can the will be rescued before you sue?

Often it can, and the drafter's insurers will usually argue it should have been. Section 20(1) of the Administration of Justice Act 1982 allows the court to rectify a will that fails to carry out the testator's intentions in consequence "of a clerical error" or "of a failure to understand his instructions". In *Marley v Rawlings* (2014), covered in [our note on rectification of invalid wills](https://lexlaw.co.uk/solicitors-london/probate-disputes-rectification-of-invalid-wills/), the Supreme Court held that giving the testator the wrong will to sign was a clerical error that section 20 could correct. Under section 20(2), the application must be made within six months from the date on which representation "is first taken out", unless the court gives permission.

Family members and dependants may also claim under the Inheritance (Provision for Family and Dependants) Act 1975, where section 4 sets the same six-month limit. In *Colbourne v Cooke & Ors (Re Estate of Barbara Collier-White)* [2022] EWHC 3029 (Ch), reported in [our note on an inheritance claim allowed despite a solicitor's error](https://professionalnegligenceclaimsolicitors.co.uk/inheritance-claim-approved-by-court-regardless-of-solicitors-error/), the court let a daughter bring her claim late after her solicitors missed the deadline, holding that confining her to a loss of chance claim against them would prejudice her. The reasonable cost of a failed rescue attempt can normally be added to the negligence claim.

# What the claim is worth

For a disappointed beneficiary the starting point is the value of the gift that failed, less anything recovered through rectification or a settlement with the estate. Where the defect is delay and the testator died before signing, the court must decide what would have happened had the drafter acted promptly, and our case note on [Supreme Court guidance on assessing the loss of chance](https://professionalnegligenceclaimsolicitors.co.uk/supreme-court-guidance-on-assessing-the-loss-of-chance/) explains how courts approach that question.

The estate's own losses are a separate head. A will that wastes an inheritance tax exemption or relief leaves the executors paying tax that careful drafting would have avoided, and our guidance on [HMRC inheritance tax disputes](https://taxdisputes.co.uk/2020/07/hmrc-investigations-inheritance-tax-disputes-iht-disclosure-advise/) covers what happens when HMRC challenges an estate's figures. If the drafter also gave tax planning advice, our page on [negligent tax advice claims](https://taxdisputes.co.uk/professional-negligence-negligent-tax-advice-sue-accountant-claims/) explains how that part of the claim is framed.

# Contesting a will is a different claim

Many people searching for help with a defective will are really facing a dispute with the estate. A probate claim attacks the will itself, for instance because the testator lacked capacity or because two wills compete, and it is fought between family members and the executors. Our articles on [challenging a will on grounds of mental capacity](https://lexlaw.co.uk/solicitors-london/probate-disputes-will-of-woman-suffering-from-dementia-declared-invalid/) and [probate disputes over competing wills](https://lexlaw.co.uk/solicitors-london/probate-disputes-where-there-is-a-contest-over-wills/) cover that ground.

A negligence claim is brought against the drafter, usually once the probate questions are settled. Sometimes the two meet: a will set aside for lack of capacity raises the question whether the drafter should have obtained medical evidence before the signing. Executors caught in the middle have their own duties, summarised in [our page on probate applications](https://lexlaw.co.uk/practice-areas/probate-solicitor-london/).

# Proving the drafter got it wrong

The will file is the most important document in the case. Attendance notes and earlier drafts usually show what the testator wanted and what the drafter did with it, and the executors can normally ask for the file. Our guidance on [preparing witness evidence for a professional negligence claim](https://professionalnegligenceclaimsolicitors.co.uk/preparing-witness-evidence-professional-negligence-claim-specialist-solicitors/) covers how the family's recollections are put into proper form.

Breach is usually judged with help from an independent expert, often an experienced private client practitioner. The claim then follows the professional negligence pre-action protocol, and [our guide to what a letter before claim for professional negligence should contain](https://professionalnegligenceclaimsolicitors.co.uk/what-should-be-in-a-letter-before-claim-action-for-professional-negligence/) explains the first formal step.

# Time limits that start before anyone notices

The rescue remedies are the urgent ones: rectification under section 20(2) and an Inheritance Act claim under section 4 both run for six months from the grant. The negligence claim follows the Limitation Act 1980. Section 2 allows six years "from the date on which the cause of action accrued", which for a disappointed beneficiary is generally the date of death, when the gift fails. Section 14A(4)(b) can substitute "three years from the starting date" where the relevant facts come to light later, and our article on [section 14A and limitation periods in professional negligence](https://professionalnegligenceclaimsolicitors.co.uk/limitation-periods-in-professional-negligence-section-14a-and-recent-developments-in-the-uk/) explains how that date is fixed.

The trap is section 14B. It bars a negligence action "after the expiration of fifteen years from the date" of the negligent act or omission, and section 14B(2)(a) applies that bar even where "the cause of action has not yet accrued". A will badly witnessed in 2010 for a testator who dies in 2026 may therefore be outside the longstop before the family knows anything is wrong. Our page on [the limitation period for a professional negligence claim](https://professionalnegligenceclaimsolicitors.co.uk/what-is-the-limitation-period-for-a-professional-negligence-claim/) deals with defective wills specifically, and if a deadline is close, protective proceedings or a standstill agreement should be in place well before it passes.

# How We Can Help

We act for disappointed beneficiaries and executors in claims against solicitors and will writers whose work caused a will to fail or cost the estate money. Our first task is to read the will file and decide whether a rescue application should come before the negligence claim, and we then take the claim through the stages in [our step-by-step guide to starting a professional negligence claim](https://lexlaw.co.uk/guide-to-starting-professional-negligence-claim-pre-action-protocol-no-win-no-fee-advice/). We do not offer free legal advice or legal aid, and we generally take on substantial matters; [our professional negligence practice overview](https://lexlaw.co.uk/practice-areas/professional-negligence-solicitors-london/) describes the claims we bring.

We are dual qualified solicitors and barristers with chambers in Middle Temple, next to the Royal Courts of Justice, so the lawyers who assess your claim can also argue it in court. We offer a fixed fee advice conference with both a solicitor and a barrister to review your papers and give you a view on merits and value. To arrange one, complete our [litigation case assessment form](https://professionalnegligenceclaimsolicitors.co.uk/litigation-case-assessment-form/).

### Want legal advice on the merits of your case?
Your legal enquiry goes immediately to our PN litigation team in Middle Temple, London. We can't take on low value cases or give free legal advice - our minimum fee is £1750 +VAT for a conference with a solicitor and barrister. Call us on +442071830529.

[Check My Case Now ✔](https://professionalnegligenceclaimsolicitors.co.uk/litigation-case-assessment-form/)

### Frequently Asked Questions (FAQs)

Can I sue a will writer if I was not their client?
Yes, if the testator intended you to benefit and the gift failed because of the drafter's negligence. The duty arises because the drafter assumes responsibility for preparing a will in your favour, and we take the view that it applies to a paid will writer as it does to a solicitor.

Does a gift to a witness always fail?
Section 20(1) of the Administration of Justice Act 1982 allows rectification where a will fails to carry out the testator's intentions because of "a clerical error" or a failure to understand instructions. Under section 20(2) the application must be made within six months of the first grant of representation unless the court gives permission, and a successful rectification reduces the loss claimable from the drafter.

Who claims when the estate itself has lost money?
The executors claim on behalf of the estate, usually for breach of the testator's contract with the drafter, for losses such as avoidable inheritance tax. Under section 5 of the Limitation Act 1980 that claim must be brought within six years of the breach, so for an older will it may have expired before the death.