Professional negligence in wills: how beneficiaries can recover costs and inheritance

Solicitors drafting wills carry a significant responsibility, not only to their clients but also to the intended beneficiaries. When that duty is breached, the consequences can be severe: lost inheritances, costly disputes, and reputational damage.

While negligence claims remain a key route for redress, courts increasingly use non-party costs orders to hold will-drafters accountable when litigation stems from drafting errors. These orders can shift costs from the estate or beneficiaries to the solicitor or their insurer, offering an alternative remedy.

This article explores how negligence in will drafting is litigated, the types of losses recoverable, and the growing role of costs orders in probate disputes.

Types of negligence

Negligent drafting typically creates two kinds of issues:

Failure to prepare a will: wills that should have been prepared and signed but were not.

This category occurred in the landmark case of White v Jones, which established that solicitors drafting a will owe a duty of care to the prospective beneficiaries. Here, a father instructed his solicitor to draft a will, leaving legacies to his daughters. The solicitor delayed, and the father died before signing, causing the daughters to lose their inheritance.

The court found there was a special relationship between a solicitor drafting a will and the intended beneficiaries because a solicitor assumes responsibility to confer a benefit on them. This was a novel claim, filling a legal gap where no remedy would otherwise exist.

Faulty wills: wills prepared and signed that should not have been, or in unclear terms.

In this category, a will is produced but it is inadequate. For example, a vulnerable client's will may be prepared without the solicitors following the 'golden rule' and obtaining an assessment, leading to it being challenged.

These claims often go alongside a related probate dispute, for example:

• validity challenges (eg testamentary capacity); or
• construction disputes over unclear terms.

Negligence: loss

In a claim, loss can include:

• lost inheritance, ie the benefits the will should have provided;
• legal costs incurred in disputes over the will’s terms or validity, which may be claimed by beneficiaries or the estate; and
• tax which would not otherwise have been payable if the will was properly prepared.

In Feltham v Freer Bouskell [2013] the claimant settled a probate claim for less than she would have received under a valid will. She recovered both her legal costs and the 'missing' inheritance she gave up on settlement

The ability to recover 'lost inheritance' has been said to result in two forms of 'inheritance' with different beneficiaries and funded from different sources: the estate itself and damages from the negligence claim. Critics argue this creates a windfall for beneficiaries at the expense of insurers, but public policy has prioritised the status quo.

Negligence: limitation

Limitation can be a significant issue in negligence claims against drafting solicitors; it is also complex.

The starting point in negligence is that claims must be brought within six years of the damage being suffered and the duty of care being owed to the disappointed beneficiary. This is usually said to be the date of the testator's death, when a new will can no longer be drafted. However, it may arguably be earlier – for example if a testator loses testamentary capacity during their lifetime and can no longer make a new will, or even the date of the signing of the will.

There is a long stop of 15 years after the original negligent act or omission, and this applies regardless of whether the cause of action has accrued. These time limits can mean some meritorious claims can never be brought – for example if the will was prepared long before the testator's death and the 15-year period has expired.

This limit can cause particular issues when legal costs are claimed because these dates may not be known until the conclusion of lengthy litigation; for example, they may depend upon which will is admitted to probate. One approach to mitigate this problem is to issue a negligence claim against the drafting solicitors and then agree a stay whilst any probate claim is progressed. However, because the drafting solicitors are likely to be key witnesses in a related probate claim, the complaining party must walk a tightrope, keeping the drafting solicitors onside whilst also issuing negligence proceedings against them.

Costs of probate claims

If there is a trial of a probate dispute relating to a 'faulty will' an order for the payment of costs will ordinarily be sought in those proceedings. Typically, the losing party pays. However, in probate disputes, if the claim was caused by an error in the drafting or execution of the will, courts can order costs to be paid from the estate, which can significantly deplete estates and the legacies of the intended beneficiaries.

Courts can also join non-parties to proceedings at the costs stage if it is just to do so. If a will-drafter's actions led to the need for litigation, they (and possibly even their insurers) can be joined at this stage.

This has been ordered in various probate cases, though often this goes unreported. Costs orders are often made in circumstances where the drafting solicitors have already accepted that they were negligent. However, the court went further in Re McKay (Deceased) [2023]; an order for costs was made against the solicitors even though they did not accept liability in respect of the unsuccessful rectification claim.

In the case of Marley v Rawlings [2014] an order was made directly against the solicitors' insurers. Here, a couple inadvertently signed each other's wills, meaning the wills were invalid; the solicitors admitted they were negligent. The court held that if the costs of the claim to rectify the will were paid by the estate, the estate would have a claim in negligence to recover those costs from the solicitors. The solicitors would then recover those costs from their insurers. To bypass that stage, the court made an order for the costs of the litigation directly against the insurers.

When is a non-party costs order useful?

A non-party costs order against a will-drafter is particularly useful when:

• the estate would otherwise have to bear the costs;
• the claim was unsuccessful, but it may still be possible to avoid adverse cost consequences (such as in Re McKay (Deceased)); and
• the solicitor has admitted they were negligent or solicitor's failings were established at trial, as seen in Leonard v Leonard, where the court identified “a litany of failings” by the solicitor’s employee.

The downside of relying solely on a costs order is that it requires the underlying dispute to be litigated to trial. Beneficiaries often prefer early settlement, but this can exclude the possibility of recovery from drafting solicitors (although the threat of a negligence claim can be enough to bring them to the table. In some cases, such as Ivey v Lythgoe [2025], it may even be possible to obtain an order requiring them to attend mediation).

How do non-party costs orders and negligence claims interact?

A key factor developing in case law for obtaining a non-party costs order is whether the solicitors accept they were negligent. The case law is not clear on this, but the recent case of Ivey v Lythgoe implies that issuing a negligence claim is necessary for the non-party costs order to be made.

In this case, the beneficiaries of a 1994 will challenged the validity of a 2009 will or claimed alternatively that both wills required rectification. Alongside this, they brought a negligence claim against the company that drafted the will.

The court consolidated the negligence claim with the probate claim, recognising the interplay between the two sets of proceedings. However, the court refused to join the drafting company as a costs-only party to the probate claim because the negligence was not admitted and the probate claim had not yet been tried. The court felt joining the firm as a party for costs pre-judged the outcome of the negligence claim.

This seems to imply that a non-party order costs order will not be made if negligence is not admitted or determined. On one hand, this seems a logical conclusion to avoid bypassing the established doctrines of negligence given that legal costs can already be recovered that way.

However, it should be remembered that the court's discretion to make a costs order is wide and the test to be applied is not the same as in a negligence claim. The trend towards a more restrictive approach to their use should be approached with caution, particularly as the 'non-party' is able to make submissions to the court on costs, to defend their position. It is not cost or time efficient for beneficiaries to have to consider, and potentially issue, negligence claims when a non-party costs order would be possible.

Requiring a negligence claim to be on foot also has negative implications for disputes where negligence claims are time barred due to limitation – for example, because the 15-year period has elapsed or the negligence, and its impacts, only came to light as the litigation proceeded. The option to obtain a non-party costs order should represent an alternative remedy for deserving beneficiaries where negligence claims are not possible.

Conclusion

Negligence in will drafting can have serious consequences, from lost inheritances to costly legal disputes. While direct negligence claims remain vital, non-party costs orders offer a potential alternative. Recent case law shows courts increasingly holding solicitors accountable through damages or costs orders where their failings have contributed to probate litigation

Ivey v Lythgoe may signal a pause in this trend, so beneficiaries would do well to adopt a dual strategy: putting will-drafters (and their insurers) on notice of both the risk of a non-party costs order and a negligence claim (and possibly even issuing the claim), particularly in complex or time-sensitive cases.

Many thanks to trainee George Budd for his help in writing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, January 2026