Can Online Will Drafting Services Limit Their Liability for Professional Negligence?

The past few years have seen an emerging trend of online services offering assistance to individuals in the handling and management of their estates, planning for end of life and drafting of wills.

Online services of this type are now offered by both established legal providers and newer businesses.

They are often advertised as a more flexible ‘DIY’ approach to probate, cutting out the traditional ‘legalese’ associated with instructing solicitors and allowing an affordable, streamlined, client-focused alternative approach.

Whilst the actual service being offered varies from business to business, generally prospective clients are offered a fixed fee (typically less than £100 or in some cases even free) for access to a tool to generate a will based on their inputs, which is then checked by a representative of the business.

Some other services are more direct, with employees of the business actively drafting the will based on the client’s instructions and for their approval. Whether the person drafting or checking the will is a qualified legal professional will differ from business to business. Whilst solicitors are subject to regulation, will writing services do not necessarily need to be drafted by solicitors and are not in themselves regulated.

What happens when drafting ‘goes wrong’?

Whilst many people will engage the services of an online will drafter and be satisfied with the results, as with any service, there is always the possibility of things going awry. For example, if a will is drafted incorrectly this could lead to a gift not going to the desired recipient, or could cause the will to be contested or create other contention between beneficiaries.

Service providers will often look to exclude their liability for any losses which might occur as a result of any issues with wills they assisted in the drafting of. Businesses’ ‘terms of service’ might include terms purporting to rule out prospective claims against them.

Generally, if a party has agreed to provide a service to another party and has gone on to do so poorly (or not at all), resulting in a loss to the other party, this could give rise to a claim for breach of contract.

However, under the Consumer Rights Act 2015, businesses are able to rely on exclusion clauses provided that such clauses are deemed ‘fair’ and that they are sufficiently brought to the attention of the consumer prior to their entering into the agreement.

What might be considered a ‘fair’ clause would in practice ultimately be a matter for the Courts to decide. However, if the service provided was a free one, the Courts would likely be more inclined to side in favour of the provider and allow them to avoid liability. Where services have been paid for, providers will have a harder time arguing any exclusion clause was fair.

It is also important to note that a Judge will usually consider the specific construction of a clause and that an exclusion clause will not always ‘catch’ all potential claims. Clauses that are too general will also be less likely to ‘stand up’ in Court.

The other position to consider here is a potential professional negligence claim. While there is some overlap between negligence and breach of contract (you may look to pursue both in tandem when possible), the two operate on slightly different principles.

Negligence claims involve scenarios where a party has taken on a ‘duty of care’. If this duty is breached and that breach in duty has caused a reasonably foreseeable loss, the party who has made the loss might look to claim that loss against the breaching party.

Claiming for professional negligence against a will provider

In order to claim against a will provider, it would first need to be shown that the provider took on a duty to the claimant in drafting a will for them, and that the claimant relied on this.

The specific breaches of duty, causation and loss of any claim against a will provider would be dependent on the individual circumstances of each case.

When considering whether an exclusion clause may be valid however, we need to consider the tortious idea of breach of duty a little further.

Professionals are held to the standard of care that would be reasonably expected of them at the time of the breach and with all of the relevant circumstances at hand. In this case, this would boil down to:

‘Did the online service provider meet the standard of care to be expected of a reasonable equivalent service provider in all of the circumstances at hand?’

If the answer was shown to be no, breach would be established.

An online provider would find it more difficult to use an exclusion clause to bar a negligence action being pursued against them than they might for an action for breach of contract.

However, what an exclusion clause would do is make it harder to demonstrate that a provider has breached their duty of care, by in essence ‘raising the bar’ on what might be considered a breach of duty.

We should also consider here that again, a free service would be more easily defended than a paid one. It follows that for a paid service the duty of care is likely greater than for a free one, so the bar for a breach of duty in a paid service would be lower.

Similarly, if you have a free service and that is coupled with a limitation of liability agreement on the basis the service is free, that must raise the bar again on that for a breach of duty being found – you are likely expecting a lesser service.

A service provider might also look to defend a claim against them on the basis of ‘contributory negligence’. Essentially, they could argue that a claimant to some degree brought about their own loss by proceeding with a free service and not proceeding via the more well established route of instructing solicitors. This would especially be the case if a claimant’s estate was valuable or potentially contentious and thus it should have been expected greater care would be needed in drafting and administration. A lot of the services offered online allow a notable degree of user input and freedom which could later be used as evidence of a self-inflicted loss.

Concluding thoughts from our professional negligence solicitors

Whilst online will providers are not likely to be successful in excluding or limiting the potential of professional negligence or breach of contract claims completely, terms and conditions including exclusion clauses are likely to strengthen their positions and make them harder to pursue. This will especially be the case where the service provided is free. People looking to make use of these emerging services should thus be extra vigilant in entrusting businesses with what is traditionally considered to be particularly sensitive and difficult work. It is important to strike a balance between affordability, ease and convenience, and the need for a job well done.