The Will Was Invalidated Because of the Lawyer's Error: Can the Heirs Sue?

A Defective Will: The Errors That Surface Only After Death

A will is a document whose defects come to light, almost always, at the worst possible moment — after the testator's death, when nothing can be corrected. The Succession Law, 5725-1965, lays down strict formal requirements: a will made before witnesses, the most common form in office practice, must under section 20 of the Law be in writing, bear a date and be signed by the testator's own hand before two witnesses, after declaring to them that it is his will, with the witnesses confirming this by signing the face of the will.

An especially well-known trap is set out in section 35 of the Succession Law: a testamentary provision benefiting the person who drafted the will, who witnessed its making or who otherwise took part in its preparation — as well as a provision benefiting the spouse of any of these — is void. It is enough that a key beneficiary was actively present at the drafting of the will, or served as a witness to it, for that beneficiary's bequest to be at risk of invalidation. A lawyer who drafts a will is expected to know this rule and to keep the beneficiaries away from the drafting process.

Further possible defects concern the testator's capacity: section 26 of the Law provides that a will made at a time when the testator did not know how to appreciate the nature of a will is void, and section 30(a) voids a testamentary provision made as a result of duress, threat, undue influence, trickery or fraud. Where the will is drafted without orderly documentation of the circumstances, claims of this kind become far harder to fend off in objection proceedings.

It is true that section 25 of the Succession Law empowers the court to uphold a will despite a formal defect, where the core elements of the will are present and the court has no doubt that it reflects the testator's free and genuine wishes — but this is a rescue route that is never guaranteed, dependent on judicial discretion and on whatever evidence remains. When that rescue fails, the damage — the loss of the bequest the testator sought to confer — has already crystallized.

A Duty of Care Even Toward a Non-Client: The Status of the Beneficiary Under a Will

The typical plaintiff in these cases is not the lawyer's client. The client — the testator — is no longer alive. The person actually harmed is the beneficiary: the intended heir who discovered that the bequest meant for them was lost because of the defect. And here arises the central legal question: does the lawyer owe a duty of care to someone who never retained his services?

Israeli case law has answered in the affirmative. The leading authority on lawyers' professional liability was laid down in CA 37/86 Levi v. Sherman, PD 44(4) 446 (1990), and it recognizes that a lawyer's duty of care does not always stop at the boundaries of the lawyer-client relationship. By virtue of section 36 of the Civil Wrongs Ordinance, the duty of care extends "toward every person" — and in appropriate circumstances also toward third parties.

The beneficiary under a will is regarded in the case law and the literature as the paradigmatic case of a third party entitled to heightened protection: the beneficiary is not an adversary of the lawyer, their interest is entirely identical to that of the client-testator — whose whole purpose in making the will was to benefit them — and the harm to them is plainly foreseeable if the will is drafted negligently. This approach is consistent with comparative law, first and foremost the English decision in Ross v. Caunters, which recognized a lawyer's liability toward a beneficiary under a will harmed by negligence in its drafting, and with Israeli case law that followed the same path, including CA 229/85 Ben Nun v. Herzog, PD 42(1) 785 (1988).

An important caveat: not every third party enjoys similar protection, and the scope of the duty is derived from the totality of the circumstances — including reliance of which the lawyer was aware, the foreseeability of the harm and the degree of proximity between the parties. Yet precisely in the case of a beneficiary under a will, these considerations weigh decisively in favor of recognizing the duty.

What Is Expected of a Reasonable Lawyer Drafting a Will

The standard of care required of a lawyer is measured by the objective yardstick of the reasonable lawyer, and inexperience is no excuse. In the drafting of wills, the case law and the literature point to several concrete duties.

First, strict compliance with the formal requirements. Satisfying the requirements of section 20 of the Succession Law is not a matter of professional judgment but of execution: signatures, a date, two competent witnesses who are present, the testator's declaration and the witnesses' confirmation. Second, keeping beneficiaries away from the drafting process, in light of section 35 — including refraining from having a beneficiary or a beneficiary's spouse sign as a witness. The literature has even recognized that in appropriate cases the lawyer should refrain from participating in a manner that would prevent him from serving as a witness in the future.

Third, verifying the testator's capacity — particularly in suspicious circumstances: advanced age, illness, hospitalization, intensive involvement of a beneficiary or dependence on one. In such situations the lawyer is expected to inquire into and document the testator's condition, and where necessary to consider obtaining an appropriate expert opinion. Fourth, documentation: an orderly record of the testator's instructions, of the identity of those present and of the course of the meetings is a central tool — both for defending the will in future objection proceedings and for protecting the lawyer himself.

We stress that not every failure of a will points to negligence. An error within the bounds of reasonable professional judgment does not amount to negligence, and matters are assessed by what was known in real time, not with the wisdom of hindsight. However, where the breach concerns an explicit statutory requirement — as opposed to a professional call on a genuinely debatable question — it is far harder to present the omission as a legitimate error.

How the Claim Is Proven: A "Trial Within a Trial"

Even where the negligence itself is clear, it is not enough on its own. A professional negligence claim requires proof of a causal link between the omission and the damage, and the accepted method is the "trial within a trial": the court hearing the claim against the lawyer must reconstruct the original proceeding and assess how it would have ended but for the negligence — as held, among other authorities, in CA 989/03 Hatar-Yishai v. Hinanzon, PD 59(4) 796 (2005).

In the context of a defective will, the central questions will be: had the will been properly drafted, would it have remained valid? Would it have survived an objection, for example on grounds of capacity or undue influence? And would the plaintiff actually have received what was intended for them? The defense, for its part, can be expected to argue that the will would have been invalidated anyway on other grounds, or that the defect could have been cured via the section 25 route under the Succession Law, so that the damage does not flow from the negligence.

A built-in difficulty in these cases is that the key witness — the testator — is no longer alive. It is precisely here that the doctrine of evidentiary damage may work in the plaintiff's favor: where it is the lawyer's own documentation failures that made it difficult to reconstruct the testator's wishes and the circumstances of the drafting, the burden may shift to the lawyer to negate the causal link, in the spirit of the holding in CA 9328/02 Meir v. Laor, PD 58(5) 54 (2004).

We would also note that alongside pecuniary damage, the case law recognizes non-pecuniary damage — emotional distress — as an independent head of damage in professional negligence claims, sometimes awarded even where the pecuniary case was not fully made out.

Who May Sue, What Can Be Claimed and on What Timeline

The circle of potential plaintiffs is wider than commonly assumed. The injured beneficiary — the person who was meant to take under the will and did not — is the typical plaintiff, by virtue of the duty of care toward third parties described above. The testator himself, while still alive, may also sue if a defect was discovered that required the will to be redone or that caused him damage, within the ordinary lawyer-client relationship. In appropriate circumstances, rights of action may also lie with the estate.

The principal heads of damage are the value of the lost bequest — the economic worth of what the plaintiff would have received had the will been given effect — and, in appropriate circumstances, costs incurred in the objection and probate proceedings conducted because of the defect, as well as non-pecuniary damage. The scope of compensation depends entirely on proof of the causal link and on the concrete evidence, and each case is examined on its own facts.

As to timing: a professional negligence claim is subject to the general law of limitation, and as a rule the limitation period is seven years. That said, in will cases the damage is often discovered many years after the negligent act — only upon the testator's death and the opening of probate proceedings. The law contains special rules on when the limitation clock begins to run in situations of limitation without knowledge and of late-emerging damage, and these are time-capped by statute. The practical implication: do not delay. Anyone who has discovered a defect in a will — in the course of objection proceedings or afterward — would do well to clarify their rights promptly, since delay can prejudice both the right of action and the evidence.

As background, we would note that an objection to probate of the will must be filed within the period fixed in the published notice, and no less than 14 days from the date of publication, and that once an objection is filed, the matter is transferred from the Inheritance Registrar to the Family Court. The objection proceeding is often the arena in which the defect first comes to light.

How Our Firm Can Help

Our firm represents clients in professional negligence cases against lawyers, including cases concerning defective wills. The work begins with a thorough review of the file: the will itself, the circumstances of its drafting, the documents from the proceeding in which it was invalidated or challenged, and the correspondence with the lawyer who drafted it. On that basis we form an opinion as to whether a cause of action exists — both on the question of negligence and on the question of causation, which is usually the heart of the dispute.

Where a cause of action exists, we accompany the client through every stage of the process: a preliminary demand, exploring a settlement track with the lawyer and his insurers, and, where necessary, conducting a claim in court, including the "trial within a trial" component it requires. In appropriate cases we also act in parallel to the objection or probate proceedings themselves, taking a comprehensive view of both the succession and the tort aspects of the picture.

It is important to us to state clearly: these cases are complex, evidence- and fact-dependent, and each case is examined on its own facts. Nothing stated above guarantees any outcome, and nothing in it constitutes legal advice for any specific case. The above is general information only, and for advice suited to your circumstances we recommend seeking individual legal counsel.

Frequently Asked Questions

The will was invalidated because of a formal defect — is that automatically negligence by the lawyer?

Not automatically, but a defect in explicit formal requirements — such as the requirements of section 20 of the Succession Law, or having a beneficiary sign as a witness contrary to section 35 — is hard to justify as a legitimate "error of judgment," as opposed to a professional call on a genuinely debatable legal question. In every case, causation must also be proven: that it was the defect that caused the loss of the bequest. Each case is examined on its own facts.

I wasn't the lawyer's client — only the heir. Do I even have standing to sue him?

Yes, you may. Israeli case law recognizes a lawyer's duty of care toward third parties in appropriate circumstances, and the beneficiary under a will is regarded as a paradigmatic example: the beneficiary's interest is identical to that of the testator-client, and the harm to them flows directly from negligent drafting. That said, whether a duty exists, and its scope, are examined according to the circumstances of each case.

The lawyer argues that the will would have been invalidated anyway because of the deceased's condition. What does that mean?

This is a central defense in these cases, and it goes to causation: even if there was negligence, there is no compensation for damage that would have occurred in any event. The court must reconstruct — within a "trial within a trial" — what would have happened had the will been properly drafted, including the prospects of an objection on grounds of capacity or undue influence. On the other hand, if it is precisely the lawyer's documentation failures that make the reconstruction difficult, the burden may shift to him.

How long do I have to file a claim against the lawyer who drafted the will?

As a rule, a professional negligence claim becomes time-barred after seven years, but the question of when the clock starts running in will cases is complex, since the damage is usually discovered only after the testator's death. The law contains special arrangements for limitation without knowledge and for late-emerging damage, and these are time-capped by statute. We recommend not delaying, and clarifying your rights as soon as the defect is discovered.

The testator himself discovered that the will the lawyer drafted for him is defective. Can he sue too?

Yes. The testator is the client, and he has a cause of action within the lawyer-client relationship if he suffered damage — for example, the costs of redrafting or of proceedings made necessary by the defect. In many cases the practical solution for a living testator is an immediate fix: drafting a new, valid will. Anyone who discovers a defect in their will would do well to correct it promptly, and in parallel to examine their rights.

You may also find helpful

• Your Lawyer Missed the Appeal Deadline or Failed to File the Claim on Time: When Is It Malpractice and What Can You Claim
• Attorney Negligence in a Real Estate Transaction: When a Failure in Handling the Deal Gives Rise to a Claim
• Attorney Fee Dispute in Immigration Case: What You Need to Know