The potential liability of a legal practitioner mandated to draft a will

Abstract

The South African law does not require that a will must be drafted by a specific and/or qualified person. The requirements for the execution of a formally valid will are, however, very technical and the objectives of these provisions are to curb the possibility of fraud and to place the focus on the testator’s intentions. The law is an ever-evolving field which continuously adapts to prevailing circumstances and issues at hand. Provision, therefore, had to be made to avoid a situation where a beneficiary and/or legatee is left without his/her inheritance and due to the shortcomings of a poorly drafted will. The focus of this study is placed on the possible liability of the legal practitioner who was mandated to draft a will and to which extent a legal professional mandated with the drafting of a will, can be held responsible under the following circumstances, namely where: (a) the will is rejected by the Master of the High Court due to non-compliance with the formalities of the Wills Act ; (b) he or she failed to execute their mandate timeously resulting in the testator dying either intestate or a previous will not being revoked; (c) the testator signed the document without scrutinising such, resulting in the will not reflecting the true intention of the testator; and (d) a beneficiary in terms of the will is disqualified to inherit due to them being involved in the execution of the will in the presence of the drafter. As liability is the central point of discussion, it is important to give due regard not only to the origin, but also the form thereof. Distinction must be made between contractual and delictual liability and is done by exploring each different element of the aforementioned forms of liability, with specific reference to a will.