Will Drafting Negligence: When a Disappointed Beneficiary Can Claim Against a Solicitor 

A beneficiary who loses an intended inheritance because a solicitor negligently drafted, prepared, or arranged the execution of a will may, in some circumstances, bring a will drafting negligence claim in Australia. In Victoria, this can arise where a high-net-worth individual, family member or other intended beneficiary suffers a lost inheritance because of an ineffective clause, drafting error or failure to execute the will in accordance with the testator’s settled instructions. 

Ordinarily, the solicitor’s client is the testator, not the beneficiary. However, the High Court’s decision in Hill v Van Erp established that a solicitor may also owe a duty to an intended beneficiary where negligent performance of the testamentary retainer foreseeably defeats the client’s intended gift. Whether that duty arises, and how far it extends, depends closely on the scope of the solicitor’s retainer, the instructions received and the steps the solicitor was engaged to take. 

A disappointed beneficiary must therefore prove more than an unmet expectation. A viable claim requires duty, breach, causation, and a recoverable measure of loss, usually assessed by reference to the inheritance or financial benefit lost because of the solicitor’s negligence. 

When Can a Beneficiary Sue a Solicitor for Will Drafting Negligence in Victoria? 

In Victoria, a will drafting negligence claim is governed principally by the common law of negligence, together with the Wrongs Act 1958 (Vic) and the Wills Act 1997 (Vic). Section 58 of the Wrongs Act requires the conduct of a person holding themselves out as possessing a particular skill to be assessed against what could be expected of a person possessing that skill in the circumstances. Section 51 addresses causation, including whether the negligence was a necessary condition of the harm and whether liability should extend to that harm. 

Where the alleged negligence concerns execution of the will, section 7 of the Wills Act 1997 (Vic) is particularly important. It sets out the formal requirements for a valid will, including writing, signature, testamentary intention, and attestation by at least two witnesses. A solicitor’s failure to execute a will in accordance with those requirements may therefore have consequences not only for the validity of the document, but also for an intended beneficiary who loses the gift. 

The leading authority is Hill v Van Erp (1997) 188 CLR 159. The High Court recognised that, despite the absence of a solicitor-client relationship, a solicitor preparing a will may owe a duty to an intended beneficiary where negligent performance of the solicitor’s retainer defeats the testator’s intention. The decision is significant because the testator cannot ordinarily recover the beneficiary’s lost inheritance, while the beneficiary may have no contractual claim against the solicitor. 

That principle has limits. In Badenach v Calvert [2016] HCA 18, the High Court emphasised that a solicitor’s duty to a beneficiary is not equivalent to a general obligation to maximise or protect the beneficiary’s inheritance. Its scope depends on the task the solicitor undertook for the testator and whether the beneficiary’s interests are relevantly consistent with the testator’s interests. The Court rejected an attempt to extend the duty beyond the solicitor’s actual retainer to inquiries and advice that had not formed part of the engagement. 

Accordingly, a disappointed beneficiary must connect the alleged negligence to a defined professional obligation. The critical questions are what the solicitor was retained to do, whether reasonable care was exercised in performing that task, and whether the breach caused the particular inheritance loss claimed. 

How Do Courts Assess a Will Drafting Negligence Claim by a Disappointed Beneficiary? 

Courts do not approach a will drafting negligence claim by asking only whether the beneficiary received less than expected. The analysis is more exacting. The beneficiary must identify the solicitor’s duty, the particular act or omission said to be negligent, and the causal connection between that breach and the lost inheritance. 

What evidence is needed to prove the testator’s intended gift? 

The beneficiary must establish what the testator actually intended the solicitor to achieve. That will usually require close examination of the solicitor’s file, attendance notes, draft wills, correspondence, instructions, file memoranda and, where relevant, evidence from other people involved in the estate planning process. 

This issue is often central because a disappointed expectation is not enough. The claimant must show that the testator had formed a sufficiently definite intention to confer the relevant benefit and that the solicitor was instructed to implement that intention. 

The reasoning in Hill v Van Erp is important in this context. The duty recognised by the High Court arose because the solicitor’s negligent conduct frustrated an identifiable testamentary intention and caused the intended beneficiary to lose the gift. 

How does the court determine whether the solicitor breached the duty? 

The court considers what a competent solicitor would have done within the scope of the solicitor’s retainer. The relevant standard depends on the work undertaken. 

For example, a claim may concern negligent drafting, failure to identify an obvious defect, delay in preparing the will, or failure to execute the document correctly. The question is not whether a better estate plan could have been devised with hindsight. It is whether the solicitor exercised reasonable care in performing the task they had undertaken. 

This distinction reflects Badenach v Calvert [2016] HCA 18, where the High Court cautioned against expanding a solicitor’s duty to an intended beneficiary beyond the limits of the retainer and the testator’s interests. 

How must the beneficiary prove causation? 

A claimant must also prove that the negligence caused the loss. This requires showing that, had the solicitor exercised reasonable care, the testator would have made or validly executed a will that conferred the relevant benefit. 

Causation can become difficult where the testator might have changed their instructions, where significant time passed before death, or where another legal or factual event could independently have defeated the gift. 

How is the measure of loss calculated? 

The measure of loss is directed to placing the beneficiary, as far as damages can do so, in the position they would have occupied had the solicitor exercised reasonable care. 

In a straightforward case, this may correspond to the value of the inheritance that would otherwise have been received. But valuation may require adjustments for contingencies, competing claims, estate liabilities, taxation consequences, or uncertainty about the testator’s intentions. 

The court therefore focuses on the loss caused by the negligence, not simply the face value of the disappointed beneficiary’s expectation. 

What Common Disputes Lead to Will Drafting Negligence Claims? 

A will drafting negligence claim often arises where the final will does not accurately reflect the testator’s instructions. The dispute may concern an omitted beneficiary, an incorrectly described asset, a defective gift, or drafting that produces a distribution different from the one the testator intended. In these matters, the solicitor’s attendance notes, draft wills, correspondence and file records are often central to determining whether the instructions were sufficiently clear and whether the final document departed from them because of negligent drafting rather than a later change of intention. 

Another recurring issue is a failure to execute the will properly. A document may have been prepared but left unsigned, witnessed incorrectly or not executed before the testator’s death despite settled instructions. The consequence can be significant. An earlier will may remain operative, or the estate may be distributed under Victoria’s intestacy rules, leaving an intended beneficiary with a substantial lost inheritance. Pentana Stanton’s recent discussion of intestacy explains how the statutory distribution can differ materially from what family members expected the deceased to provide. 

Delay can also give rise to a claim, particularly where instructions are taken from an elderly or seriously ill client, and the proposed changes are clear. The legal question is not simply whether the solicitor could have acted more quickly. The court will examine the urgency that was apparent at the time, the scope of the solicitor’s retainer, the steps taken and whether timely action would have resulted in a valid testamentary disposition. 

More complex disputes arise where a beneficiary argues that the solicitor should have gone beyond the immediate drafting task, for example by investigating family circumstances, identifying the risk of a later estate claim, or recommending a different estate planning structure. Courts approach these claims cautiously. Following Badenach v Calvert, a duty to an intended beneficiary does not amount to an open-ended obligation to protect an inheritance against every foreseeable risk. Separate succession issues may also arise where jointly owned property passes by survivorship rather than through the estate. 

In practice, the distinction between a viable negligence claim and a disappointed expectation often turns on contemporaneous evidence. Preserving the solicitor’s file, execution records, correspondence, and evidence of the deceased’s instructions is therefore critical to assessing duty, breach, causation, and the appropriate measure of loss. 

What Should Be Assessed Before Pursuing or Defending a Will Drafting Negligence Claim? 

Before commencing or defending a will drafting negligence claim, the priority is to establish the evidentiary record. The solicitor’s complete file should be obtained and reviewed alongside the executed will, earlier wills, draft documents, attendance notes, correspondence, execution records, and any contemporaneous evidence of the testator’s instructions. These materials often determine whether there was a clear testamentary intention and whether the alleged negligence caused the lost inheritance. 

The scope of the solicitor’s retainer should then be defined with precision. Claims weaken where they depend on obligations solicitor was never engaged to perform. Conversely, a clear retainer combined with documented instructions and an identifiable drafting or execution failure may materially strengthen the beneficiary’s position. 

Causation should also be tested before litigation costs arise. It may be necessary to consider whether the testator would in fact have executed the proposed will, whether they retained capacity, whether their instructions were final, and whether a later event could have altered the intended distribution. The measure of loss should likewise be assessed realistically, including estate liabilities, competing claims, and other contingencies that may affect the value of the alleged inheritance. 

For defendants, an early review should focus not only on breach but also on whether any duty to an intended beneficiary arose at all and whether the claimed loss falls within the scope of that duty. For claimants, the strongest matters are usually those where the documentary evidence creates a clear line from settled instructions to professional error, to identifiable financial loss. 

A disciplined early assessment can narrow the real issues in dispute and inform whether the matter is better suited to negotiation, mediation, or contested proceedings. 

Frequently Asked Questions 

What Should You Do If You Suspect a Will Drafting Negligence Claim? 

A will drafting negligence claim can arise where a solicitor’s error causes an intended beneficiary to lose an inheritance the testator meant them to receive. The viability of the claim will usually turn on the scope of the solicitor’s retainer, the evidence of the deceased’s instructions, whether a duty to an intended beneficiary arose, and whether the alleged breach caused a quantifiable lost inheritance. 

These matters benefit from early assessment because the solicitor’s file, earlier wills, correspondence, and execution records can be critical to establishing or defending liability. 

If you are considering a claim, responding to an allegation, or dealing with an estate affected by a drafting or execution issue, learn more about our professional negligence services or book a consultation with Pentana Stanton Lawyers to discuss the specific circumstances. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.