In August 2013, leading barrister Tom Dumont KC issued a legal opinion that sent a clear message to private client professionals: failing to register a will, failing to respond to a will search, or failing to carry out a will search could expose practitioners to serious negligence risk.
Thirteen years later, that message remains as relevant as ever.
In his opinion, Dumont KC warned that solicitors and other professionals were “at serious risk of being found negligent, and potentially paying out substantial damages” where they did not offer will registration, did not respond to a will search, or did not search for a will before administering an estate.
At the heart of the opinion is a simple principle that continues to underpin best practice today. Where a foreseeable risk exists, and there is a simple and inexpensive way of avoiding it, professionals are expected to take that step.
“The court will readily find that there is a foreseeable risk that not registering a will will result in that will not being discovered post-death.”
The opinion makes clear that the risk is not theoretical. Estates may be administered on the wrong basis, beneficiaries may receive assets incorrectly, and personal representatives and advisers may face claims where a later will emerges.
Crucially, Dumont KC emphasised that professional custom is not a defence where the risk is obvious and the preventative step is straightforward.
The solicitor who failed to adopt the simple procedure which could have avoided the risk to his client does so at his own risk and not his client’s.
The opinion also addressed the duty to search before applying for a grant, stating in unequivocal terms:
Any solicitor who fails to carry out a will search with The National Will Register, when instructed to obtain a grant of probate or letters of administration, is at extremely serious risk of being found negligent, should a will later emerge which the search would have revealed.
Dumont KC further observed that the cost and effort of carrying out a search would be weighed heavily against the potential consequences of getting it wrong. In his words, any suggestion that the expenditure was unnecessary would be “laughed out of court”.
What is striking, more than a decade on, is how closely the opinion aligns with the realities of modern estate administration. Families remain uncertain about whether a will exists. Executors still make assumptions. And professionals continue to face increasing scrutiny around process, evidence and defensibility.
The legal landscape has not softened since 2013. If anything, expectations around risk management and professional accountability have increased.
There can be no doubt: liability for failure to register, failure to respond to a search, or failure to carry out a search, is an inevitable increment.
Thirteen years on, that increment has not disappeared. The opinion remains a timely reminder that certainty is not just helpful in estate administration. It is protective.
Tom-Dumont-Opinion-–-Certainty-The-National-Will-Register.pdf (350 KB)