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Professional Indemnity Insurance - Wills and Probate

Professional Indemnity Insurance - Wills and Probate

Oversights and Clerical errors – Long Live Equity?

For those studying law in the early 1980s, Lord Denning was held up as a model of the application of common sense. Lord Neuberger in the widely reported Supreme Court decision in Marley v. Rawlings 2014 UKSC 2 reminds us that whilst decisions may make the law appear momentarily less clear, they do helpfully apply a dose of overdue common sense.

With the Society of Trusts and Estate Practitioners (STEP) publishing a will writing code for its members (following the refusal of the Government to regulate the work), coming into effect on 01 April 2014, it is timely to take on board the impact of the Neuberger decision and the active risk management that flows from it.

WIQS

One must not overlook the introduction of the quality mark of the Wills and Inheritance Quality Scheme (WIQS) last autumn, to help firms compete with national brands and to differentiate Solicitors from other providers of wills and probate advice.

Marley v. Rawlings

A brief moment to look at what happened; Husband and Wife made mutual wills, but with a substantial gift to Mr Marley. On signing, the Solicitor made what was described as a ‘silly mistake of faithfully carrying out his instructions’ in that he mixed up the 2 wills, resulting in each signing the wrong will with the error only coming to light on the second death.

If the will was invalid, the whole estate would not pass to Mr Marley. The Supreme Court disagreed with the Court of Appeal and said it was a classic case for rectification. It was clear what Mr Rawlings had wanted to achieve. The will as such was a matter for a court of construction.

The ‘silly mistake’ by the Solicitor was ‘not an error of law or other expertise. As such it was fairly characterised as clerical’.

'Clerical Errors' - A term of art or reality?

The Supreme Court says this should be given a wide, rather than a narrow, meaning. Whilst the law may for the moment appear to be less certain, it is certainly more equitable; with the phrase ‘equity shall prevail’ sounding out.

Interestingly, Lord Neuberger in October 2010, then Master of the Rolls, discussed in Hong Kong University the question, “Has equity had its day?” quoting from Lord Evershed that “the function of equity was…to fulfil the common law; not so much to correct it as to perfect it.”

He concluded in 2010 that law mirrors life; and as such; one can never say never. That is what has occurred in Marley v. Rawlings.

Active Risk Management?

Lord Denning died just 6 weeks after his 100th birthday. Some said he introduced uncertainty, making it difficult to predict outcomes. What Solicitors and their firms must always do is strive to ensure that the instructions of their clients are adhered to and not unpicked by a clerical or ‘silly’ error.

The tools available to solicitors relating to the execution of wills remain led by mindfulness of the significance of that execution, and the awareness of the consequence for the client of a plain breach of duty, whether by clerical error or otherwise (and of the possible consequences to the law firm with its PII Insurers).

Potential Proliferation of Probate Disputes?

Commentators have said there may now be a small hiatus whilst the equitable law is understood. However, it does heighten the fundamental flaw of doing work for a client, drafting the words to ensure their wishes are met, only to potentially unpick it via a clerical error. Diligence and vigilance count here. Pressures of time and speed become valueless without the continued and insistent use of checklists and organised processes.

Conclusion

Specialist PII brokers will say that too many claims arise from the ball being dropped at the least convenient moment. Having to rely on external evidence after the event to steer around a technical defect is at best unfortunate and will cost you and your colleagues far more time than the original 24 minutes or so spent with the client on execution of their will.

Looked at as a pure time element - that is active risk management in action.

Wesleyan’s Professional Indemnity Team can be contacted on:

0800 107 8171

PIIenquiries@wesleyan.co.uk

This article is a general guide and is not a substitute for professional advice. No responsibility can be taken for any loss incurred by anyone acting or failing to act on the basis of this article.

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