Drafting Wills during the pandemic
April 24, 2020
By Stephanie Kerr (Brabners LLP) and John Waiting (Exchange Chambers)
The response to the pandemic has already shown that the legal profession is able to adapt to challenging circumstances. In a short space of time the profession has detached from its offices and set up in spare rooms, lofts and kitchen tables.
Solicitors will need to consider how the measures taken in order to work from home affect their ability to comply with their duties to their clients.
This article is written from the point of view of contentious probate practitioners to highlight common bases by which wills are challenged or a claim made against a solicitor. It is anticipated that the risks these issues pose are exacerbated by the conditions in which we find ourselves.
The execution of wills during the pandemic is an issue on which the Law Society has issued guidance, and this note will not address this issue further.
Taking instructions by email, telephone or video
In relation to the client themselves, steps need to be taken to ensure that it is the client (in this case the person who is making the will) who is giving the instructions, and that adequate steps are taken to check their identity.
The method will need to take into account the client’s attributes, needs and circumstances, and allow the information and advice to be given in a way they understand, so that they can make informed decisions.
The SRA Will drafting guidance dated 25 November 2019, identifies the following issues which need to be managed:
- “making sure that clients have the necessary testamentary capacity and, where appropriate, that a doctor’s opinion is obtained to evidence this;
- situations where you are concerned about someone’s undue influence on your client;
- monitoring for frauds and scams (particularly if you provide online will writing services);
- ensuring that full information regarding the client’s assets and immediate family is obtained and retained;
- recording processes to make sure there are records of any reasons for excluding family members who might otherwise be expected to benefit, and that the implications of this are explained to the client;
- making sure wills are drafted in a timely manner, having regard to any particular circumstances (eg if the client is in hospital);
- situations where clients do not return the signed version of their will within a reasonable time.”
Capacity
The pandemic will not in any way loosen the requirement that where a solicitor has concerns over their client’s capacity they must either refuse the instructions and make the position clear to the client or take steps to satisfy themselves as to their client’s mental capacity promptly. (see Feltham v Freer Bouskell [2014] P.N.L.R. 2 at paragraph 53).
It is a matter of best practice (but not a requirement of validity) that a solicitor follows the golden rule, set out by Templeman J in Kenward v Adams [1975] C.L.Y. 3591 and reiterated in Re Simpson (decd) (1977) 127 NLJ 487:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it maybe to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.
There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator and, if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator.
These are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined, and great expense and misery may be unnecessarily caused.”
Those who are elderly or have suffered a serious illness, but have capacity must be able to take advice and make a will. Solicitors must have processes in place to allow a medical practitioner to assess whether the client has testamentary capacity and that those processes can be put in place quickly. Enquiries could be made with medical practitioners before the issue arises.
Undue Influence
A solicitor will want to satisfy themselves that no-one else is present when they are taking instructions or giving advice, and to satisfy themselves that the wishes stated are those of the client. The solicitor must take steps to identify who is in the room with the client. If another person is present the solicitor will need to explain that it is preferable to take instructions in the absence of others and record any advice given and the response.
One difficulty that is anticipated is that where a client is not proficient with technology, a person assisting them with the technology could be abusing that position to exercise undue influence over the client.
Where one person is being excluded from the will to the benefit of another party, records must be kept of any reasons and the implications must be explained to the client. If the processes being used are not allowing this to happen, the processes need to be changed.
The usual precautions in relation to joint instructions to identify and avoid any conflict of interests need to be taken.
Earlier wills
A solicitor should obtain any earlier will (or a copy) so that the reasons for any changes can be discussed. How this is sent and received securely will need to be considered.
Knowledge and approval
If a Will is challenged the Court will consider whether a testator knew and approved the contents of their Will. The Court will ask the question did the testator understand what was in the will when they signed it and what its effect would be? (see Gill v Woodall [2011] Ch 380.) The solicitor will need to make sure that the technology is not a barrier to the client understanding the content of their Will and what the effect will be.
Conclusion
It is recognised that there is great pressure on those who draft wills during the pandemic. However, disappointed beneficiaries in the future may seek to capitalise on working practices which superficially overcame the limitations caused by the virus, but which fail to allow a solicitor to perform their duties properly. The solicitor should consider what they would wish their response to any Larke v Nugus request to be and make sure their emergency practices allow these standards to be maintained.
