Will preparation in modern society

Burns v Burns [2016] EWCA Civ 37 and James v James [2018] EWHC 43 (Ch). Look at the information the courts have focused on when the will writer has given evidence.

As a starting point only, and while not exhaustive, your note of the will instruction, execution and any other meetings with the client should record the following:

• Where the meeting took place. 
• How long you spent with the client.
• Who was present. If just you and the client met, make sure that you record this fact; however, if others were present, record their involvement (if any) in the meeting, including whether nothing is said.

Note: While not directly related to the issue of capacity, this record may become invaluable if a claim of undue influence is raised (see below).

• How you assessed capacity. It is not enough to simply state: ‘I was satisfied that my client had capacity.’ Yet, I have lost count of the number of times I have seen this in a solicitor’s/ Chartered Legal Executive’s notes as a mediator. While this may well show that attention was given to this point, it could make for an unpleasant time on the witness stand when giving evidence.
• What questions did you ask and what were the answers? If possible, record the questions and responses verbatim.
• It may also be worth summarising your conclusion on the client’s capacity, and why you came to, using the answers to the questions in support of that summary.
• If there are any reasons for concern (for example, if the client has been diagnosed with dementia recently or is known to be taking prescription drugs) make sure you note this information. In years to come, the file will demonstrate that the assessment of capacity included issues you were aware of at the time the client gave their instructions.

In addition to your notes of any meetings, the will file should reflect that, if there was a previous will, a copy was obtained and reviewed to check for any obvious inconsistencies or omissions, and to ensure that there is no earlier mutual will binding all or part of your client’s estate.

Note: Even if the claim is not against you or your firm, reputational damage is a real risk, especially if the judge comments adversely on your abilities or the firm’s processes.

Undue influence

It is essential to ensure that your client is giving instructions free of coercion from others. This is no different to any instruction from a client. Although, unlike inter vivos gifts, there is no presumption of undue influence in relation to testamentary gifts, presumptions are only a starting point. One issue lawyers face is that it is not uncommon for elderly clients to ask a family member or friend to make the arrangements for the will instruction meeting, and then to accompany them to this meeting.

You are under a duty to ensure that the instructions from your client are given freely. You must satisfy yourself that this is the case and your attendance note ought to support your view, with reasons. Ideally, you will take your client’s instructions with no one else present. If this is the case, record this fact and ask questions to ensure you are satisfied that the instructions are your client’s alone; in addition, to support your opinion there is no undue influence, note both the questions you raised and the client’s answers.

If it is not possible to interview your client alone, document who was present and any involvement this person had in the interview, especially if they are also a beneficiary. It will also be helpful to document your client’s demeanour, and that you were satisfied the instructions given were their own.

You must remain alive to the possibility that those present at the will instruction meeting may be exerting influence over your client. So, keep an eye out for anything that makes you suspicious. For example, if your client defers to those present and does not answer your questions, it may be wise to stop the will interview.

Note: If the new will is materially different to previous wills, and especially if those changes benefit those present, you may have to insist that your client is interviewed alone.

Knowledge and approval

In a claim you may well be asked to set out how far you went to confirm that the testator understood the content and effect of the will.

It is not a bad idea to read the will out loud to your client, and then make certain that it was understood. If your client asks for clarification or points out any errors or omissions or asks for anything to be altered, ensure you record this in detail.

Ideally, you will oversee execution. This will give you a final opportunity to gauge your client’s understanding and answer any questions. You will also be able to make sure the will was executed in accordance with section 9 of the Wills Act 1837.

Note: Do find out if English is your client’s first language. If it is not, make sure that you establish whether the will needs to be translated into another language.

I have been appointed to mediate a claim brought under this head, in which it was argued that the deceased could not understand English. It was not his first language, and the will writer did not have the will translated or read out to the testator in his natural language. This put the solicitor in a very difficult position as, although the attendance note recorded that the client understood the content of the will, it did not set out what had led to this conclusion.

Pecuniary legacies

Another obvious issue is to ensure that your client has sufficient funds to pay any pecuniary legacies, especially if a specific gift is made of a house. While your client may well have capacity, the nature and extent of the estate is one of the tests to be applied. If it turns out that your client never had the funds to meet the pecuniary legacies, questions may be raised about whether your client could have known and understood the content of the will.

Claims by cohabitees and adult children under the Inheritance (Provision for Family and Dependants) Act 1975

Claims of this nature are growing in popularity. This is partly because the law on cohabitation has not caught up with modern trends, in that living together is becoming more common. Publicity over claims by adult children has also not helped.

While this country enjoys the concept of testamentary freedom, which is not shared with many other countries, this is subject to the potential for certain individuals, who fall within the Inheritance (Provision for Family and Dependants) Act (I(PFD)A) 1975, to make a claim against the estate for financial provision. The assessment depends on whether the claimant is a spouse or falls within one of the other classes. It is therefore important that your client has been advised of the possibility of a claim so that an informed decision can be made.

Whether or not you agree with these types of claims is irrelevant. The questions are: Did you advise your client on the possibility of such a claim arising? If so, can you demonstrate this if asked to do so?

Note: Make sure that you record the reason your client gave for excluding a potential beneficiary. If your client is prepared to put the reasons in writing all well and good; however, this should not form part of the will.

Your role

You can see how a thorough approach to the testator’s financial and personal position will assist in uncovering any potential issues and allow you to fully advise your client on the options available.

Remember that part of your role as an adviser will include looking at options to achieve your client’s wishes while reducing the risk of future litigation.

Proprietary estoppel

This issue is more common in farming disputes (‘Work the land my boy and one day all this will be yours’) although it is not exclusive to such challenges. However, with equitable doctrines gaining momentum as heads of claim in support of say lower value claims (for example, an I(PFD)A claim by an adult child), this is certainly an area of which you may want to be aware, if only to simply to cover yourself, so that a potential issue was identified and brought to the testator’s attention.

Remember that, as part of the will interview, the client ought to give you details of anyone consideration ought to be given to benefit from the estate (this is one of the tests of testamentary capacity). Exploring this matter further can help you to identify any potential issues, for example, if promises have been made in the past, to whom and under what circumstances. Even if your client is adamant that no promises had been made, it is useful to record that this discussion took place.

Mutual wills

As private client lawyers, we all know that there is nothing to worry about under this head. You have checked any earlier wills as part of your standard will-writing process (see above), and there is nothing in any earlier will to suggest a prior agreement. So, that is it: the agreement has to be clear does it not?

It may be worth looking at the case of Legg and Burton v Burton, Brooks and Burton [2017] EWHC 2088 (Ch) because, suddenly, this question may not be as clear cut as we thought!

Taxation

We are not accountants and our terms and conditions clearly state that we do not give tax advice. So, we are covered, I hear you cry. But is this right or wrong?

How many of you recommend creating will trusts? On the back of this advice, how many of you couple that recommendation with the appropriate taxation advice? What type of trust did you recommend? Was it an immediate post-death interest or a relevant property trust? If those references are alien to you, you may want to go back to the drawing board when discussing life interest and discretionary trusts.

How can you possibly recommend something if you do not fully understand the ongoing financial consequences of including trusts in a will and if you do not fully understand the tax implications?

Summary

The private client lawyer’s role is not only fully to understand the client’s wishes and ensure that they are achieved so far as is possible, it is also to explore issues which may result in any adverse consequences for their wishes and the advice you give in response.