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17 January 2014 / David Finnerty
Issue: 7590 / Categories: Features , Wills & Probate
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Watch out!

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David Finnerty provides advice on how to avoid a professional negligence claim in a contested probate case

Recent reports have shown a 700% increase over the past five years in contested probate cases involving the challenge of a will. Many of these cases will have scrutinised the conduct of solicitors to decide whether they were negligent in their actions and advice. The financial and reputational implications of any such finding can be significant.

Duty of care

When managing a will, solicitors owe a duty of care to both testators and beneficiaries. Numerous cases exist of solicitors being found to be in breach of this duty, from failing to properly assess testamentary capacity, to not dealing with medical evidence issues promptly, to not identifying a testator who was being unduly influenced.

It is understandable that solicitors who specialise in non-contentious probate can be unprepared for litigation. So if the work you do could leave you susceptible to a claim, how can you minimise the risk of being found professionally negligent?

Capacity

The issue of capacity is

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NEWS
A High Court ruling involving the Longleat estate has exposed the fault line between modern family building and historic trust drafting. Writing in NLJ this week, Charlotte Coyle, director and family law expert at Freeths, examines Cator v Thynn [2026] EWHC 209 (Ch), where trustees sought approval to modernise trusts that retain pre-1970 definitions of ‘child’, ‘grandchild’ and ‘issue’
Fresh proposals to criminalise ‘nudification’ apps, prioritise cyberflashing and non-consensual intimate images, and even ban under-16s from social media have reignited debate over whether the Online Safety Act 2023 (OSA 2023) is fit for purpose. Writing in NLJ this week, Alexander Brown, head of technology, media and telecommunications, and Alexandra Webster, managing associate, Simmons & Simmons, caution against reactive law-making that could undermine the Act’s ‘risk-based and outcomes-focused’ design
Recent allegations surrounding Peter Mandelson and Andrew Mountbatten-Windsor have reignited scrutiny of the ancient common law offence of misconduct in public office. Writing in NLJ this week, Simon Parsons, teaching fellow at Bath Spa University, asks whether their conduct could clear a notoriously high legal hurdle
A landmark ruling has reshaped child clinical negligence claims. Writing in NLJ this week, Jodi Newton, head of birth and paediatric negligence at Osbornes Law, explains how the Supreme Court in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 has overturned Croke v Wiseman, ending the long-standing bar on children recovering ‘lost years’ earnings
A Court of Appeal ruling has drawn a firm line under party autonomy in arbitration. Writing in NLJ this week, Masood Ahmed, associate professor at the University of Leicester, analyses Gluck v Endzweig [2026] EWCA Civ 145, where a clause allowing arbitrators to amend an award ‘at any time’ was held incompatible with the Arbitration Act 1996
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