Private client-related claims: the current landscape

As wealthy individuals and families look to take steps to protect their wealth in an increasingly volatile post-Covid world, claims against solicitors have increased for alleged failings in relation to the associated tax planning and probate work.

Various factors play into this increase. Firstly, the influence of the Covid-19 pandemic, which for obvious reasons, led to an increase in the volume of instructions to draft wills and trusts, or to give tax planning advice on the transmission of family wealth or the sale of family companies.  That work was frequently done under time pressure and against a changing backdrop, with many individuals and businesses requiring quick advice pertaining to the Government’s emergency schemes such as tax reliefs, business rates relief and VAT deferrals. Meanwhile, the law firms themselves were under pressure, with many firms furloughing staff and some facing significant financial difficulties themselves. These elements together created an environment in which, inevitably, mistakes were made.

Secondly, more people are needing this sort of advice these days and their personal circumstances are more diverse. The “nuclear family” is no longer the norm. Family structures can be complex, meaning that solicitors have to work harder to provide tailored advice and expertise. The increase in property prices over the past few decades, particularly in certain areas, means that what might once have been a modest estate can become very significant. Further, there have been a number of proposed tax legislation changes affecting wealthy families in recent years (particularly since the change in Government) in respect of “non doms”, Agricultural Property Relief and Business Property Relief. As a consequence of all these factors, more families are turning to professionals such as solicitors for advice in terms of estate planning and wealth management. And the higher stakes mean they are more likely to look for redress if they are not satisfied with that advice.  

As a result, we have seen claims against solicitors relating to errors when drafting corporate transactional documents, failure to advise on UK tax liability on foreign assets, errors in tax advice regarding holdover relief and CGT, and failures to provide advice regarding Deeds of Variation. These claims often involve complicated tax issues and documents which need to be carefully drafted to tie in with complex tax advice (sometimes given by other professionals such as accountants and IFAs). When defending these claims for solicitors, we have to consider the role(s) of those other professionals, which can mean that claims involve multiple parties. This can mean that where liability is established, it is shared, but inevitably the price for that can be increased claim complexity and costs.

Thirdly, issues of timing and delay sit behind quite a number of claims. We continue to see claims where solicitors have failed to act quickly enough when taking instructions. For example, where wills have not been amended in time, leading to claims by disappointed beneficiaries. The practical challenges presented by the pandemic, as mentioned above, exacerbated an already difficult situation. The government attempted to ease some of those pressures by introducing temporary legislation in September 2020, amending the Wills Act 1837, to allow wills to be witnessed remotely. That temporary change no longer applies, but we are still seeing claims arising from wills that may not have been properly witnessed. This in turn can affect probate once the time comes to make the necessary applications.

On that issue, whilst we have seen improvements in processing times at the Probate Registry - the Law Society Gazette reported that the average waiting time for digital applications to be processed in December 2024 was 4 weeks, which is a massive improvement from the wait time of 12 weeks a year prior - delays remain problematic. These delays can impede access to inheritance tax funds and leave families facing potentially huge interest bills whilst they wait for matters to be resolved. This will be compounded by the interest rate on unpaid inheritance tax which rose from 2.5% to 4% above base rate in April 2025. It is therefore more important than ever that firms do what they can to prevent delays in probate being granted.

Where does this all leave private client lawyers? For many, whilst the pandemic is long gone, its repercussions live on. Constant changes in government policy and delays can create headaches and concern for clients. It will be more important than ever for those advising in this area to avoid mission creep, issue engagement letters and to make notes of discussions explaining the scope of their role, and to refer clients on for specialist advice where it is needed.