This case study is an anonymised composite based on publicly reported PI claim patterns. It is not actual Apex client data and does not constitute legal or insurance advice. Names, locations and identifying details have been changed. Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority, FRN 724952.
A three-partner, ten-fee-earner private client and probate firm in a south-coast town. Fee income around £1.6m, with private client (wills, trusts, probate, LPAs) generating the majority. A long-tenured wills team — but one with a single senior associate carrying most of the bespoke drafting and modest support from a junior solicitor.
The testator was an 81-year-old widower who wished to update a will originally drafted by the firm twelve years earlier. The earlier will had left his estate equally between his two children. By the time of the instruction, his elder daughter had pre-deceased him, leaving two grandchildren in their twenties to whom the testator was close and whom he wanted to take their late mother’s share by representation. His son was to take the other half outright.
The senior associate took instructions in a single thorough meeting. The attendance note recorded the testator’s wishes clearly: “half to my son [name], half to my late daughter’s children [names] equally”. A draft will was produced and circulated. The testator returned with one minor amendment to a personal chattels clause; the will was finalised, executed and stored.
The error lay in the residuary clause. The drafter had used the firm’s standard precedent and substituted the beneficiaries, but the gift to the grandchildren was expressed as a gift to the testator’s “daughter [name], or her issue per stirpes if she shall have pre-deceased me”. This drafting was internally inconsistent — the daughter was named as if alive, and the substitutional gift was conditional on her pre-deceasing. The testator’s daughter had pre-deceased the will; the substitutional gift was therefore effective. On a literal reading, however, the named primary beneficiary (the deceased daughter) was the “person” intended, and arguments arose on probate as to whether the gift had lapsed because the named beneficiary was dead at the date of the will and whether the substitutional gift was effective only if she had survived the will and then pre-deceased the testator.
The error was not spotted on file review. The testator died eighteen months after execution. On probate, the deceased daughter’s children — through their probate solicitors — argued the substitutional gift took effect. The son’s solicitors argued the gift had lapsed and the half-share passed under the residuary clause of an earlier will (which the new will purported to revoke) and ultimately under the intestacy rules. Counsel’s opinion was sought on both sides. Each ran to a different conclusion.
After a contested probate dispute lasting fourteen months, settled by a Tomlin order at mediation, the grandchildren recovered approximately 72% of the share they would have received had the will been clearly drafted. The shortfall, plus their reasonable costs in the probate dispute, plus the son’s contribution to costs, was the loss claimed against the firm.
The action was framed as a White v Jones [1995] 2 AC 207 disappointed-beneficiary claim. The grandchildren had standing to sue the firm directly notwithstanding that they were not the firm’s clients; the firm owed them a duty of care to take reasonable care that the testator’s testamentary wishes were given effect. The decision in Carr-Glynn v Frearsons [1999] Ch 326 and the more recent guidance in Daniels v Thompson [2004] EWCA Civ 307 on the scope and timing of the duty was relied on.
Quantum was put at approximately £148,000, comprising the shortfall on the inheritance, costs of the probate dispute, and interest.
Notification was made promptly on the firm becoming aware of the probate dispute and the prospect of a beneficiary-side professional negligence claim. The firm’s MTC-compliant wording responded without difficulty: a drafting error giving rise to a White v Jones claim sits at the heart of the cover. The £2m limit was untroubled.
The £10,000 excess applied. The insurer instructed defence counsel who agreed liability was difficult to defend — the attendance note was unambiguous, the drafting was clearly internally inconsistent, and the firm had no plausible argument that the testator had intended the substitutional gift to fail. The defence focus moved to quantum and contributory issues: whether the grandchildren had reasonably mitigated by accepting an earlier offer in the probate dispute, and whether the costs they had incurred were reasonable.
A particular point arose on the firm’s section 3 Insurance Act 2015 fair-presentation obligation at the prior renewal. The firm had disclosed “no claims or circumstances” at the renewal that fell between execution and the testator’s death — entirely properly, as the firm had no actual or constructive knowledge of the error at that point. The principle in Euro Pools v RSA and the underlying logic of the Insurance Act 2015 confirmed that a circumstance is not notifiable until the insured has actual or constructive awareness of facts giving rise to a real risk of a claim. No coverage point was taken.
The matter settled at mediation at approximately £124,000 plus the claimant’s reasonable costs.
The settlement was paid. The firm took the opportunity to overhaul its will-drafting process: paired drafting on any bespoke residuary clause, a structured peer-review checkpoint before execution, and a documented half-day refresher for the wills team on STEP-aligned drafting standards. The SRA was notified; no investigation was opened beyond a recorded outcome letter. The firm’s PI premium rose by approximately 24% at the next renewal — material but not punitive — and the firm has continued to grow its private client work.
Wills are deceptively claims-prone. First, every bespoke residuary clause should be drafted, read aloud against the attendance note, and independently checked by a second qualified drafter before engrossment — internal inconsistency is the single most common defect. Second, attendance notes should record not only the testator’s wishes but the drafter’s understanding of family structure including pre-deceased relatives and substitutional intentions, because the disappointed beneficiary’s counsel will reach for that note first. Third, firms should keep a list of bespoke (non-precedent) wills produced in the last six years and consider whether any merit a structured retrospective review. Fourth, claims arising from wills typically come to light long after execution; the renewal disclosure obligation under section 3 should be approached realistically — disclose what the firm actually knows, but invest in the file audits that allow the firm to know.
We would have framed the White v Jones notification in the terms the insurer’s claims team is familiar with — they see these claims often and respond constructively when notification is clean. On the renewal that follows, our approach is to walk the underwriter through the process changes evidenced by the file-audit programme, not the headline claim quantum. With private client firms, the renewal narrative around drafting discipline and STEP qualifications carries real weight with the specialist markets and is usually the difference between a difficult and a manageable rate movement.
Apex Insurance Brokers serves UK professional services firms and commercial businesses. Call 0117 325 0027, email hello@apexinsurancebrokers.co.uk, or request a quotation.
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