The Will draftsman’s duty of care to beneficiaries

The possibility that a disappointed beneficiary, who receives less than he or she hoped for from a testator’s estate, will sue the draftsman of the Will is doubtless an unwelcome pressure on many readers. Will draftsmen must act with reasonable despatch when the instructions have been given to them (White v Jones 1999 1AER 691), ensure that any gift of an interest in jointly owned property will be effective, by severing any joint tenancy (Carr-Glynne v Frearsons 1998 4AER 225) and of course ensure that the Will is duly executed (Ross v Caunters 1979 3AER 580, Esterhuizen v Allied Dunbar 1998 2FLR 668).

Apart from the severance of the joint tenancy, is the Will draftsman under any wider duty to ensure that the testator acts during his lifetime, to ensure that the benefits given by his Will take effect after his death? For example, is the Will draftsman bound to discourage the testator from selling or gifting a property left by his Will, where this will have the effect of making the gift by Will ineffective?