Risk management issues: delay in drafting a will; requests for certification; checking files when giving advice

This month, Alistair Sim draws attention to the decision in a Scottish case which confirms that delay in acting on a client’s instructions for the preparation of a will can give rise to a potential liability to disappointed beneficiaries.

The case of White v Jones [1995] 1 ALL ER 691 established, at least south of the Border, that a solicitor who delays drafting a will could be held to have a duty of care in negligence to a potential beneficiary who suffers loss as a result of that delay.

In a recent decision, the view has been taken that White v Jones is to be followed in Scotland and this serves as a reminder that one should not delay in drafting a will after receiving instructions.  By the same token, one should not delay in producing a signing copy after the testator has indicated final approval of the terms of the draft.

What constitutes delay?  What is a reasonable time scale?  Is a week too long?  Does it depend on the testator’s particular circumstances?  This has not been prescribed by any of the case law.

What is clear is that there is the potential for delays to occur in relation to drafting wills as there is in relation to any area of work and for the same variety of reasons.  Unscheduled fee earner absences may delay matters; complex provisions may prove difficult to draft; competing priorities may prevent wills being dealt with as quickly as intended.

Risk management points

One approach which has been suggested is to agree a time scale with the client for preparing a draft will and thereafter producing an engrossment and perhaps also having the will signed by the client.  Having agreed a time scale, it would then be more difficult to avoid liability in the event of failure to comply with the agreed time scale.

Should there be an informal ‘office rule’ establishing the optimum turn around time for drafting, engrossing and arranging signature?  At the very least, one should have a time scale in mind and aim to stick to it.  If you get ‘stuck’ or develop a mental block because the provisions prove more difficult to draft than anticipated, ask a colleague for assistance.

Be clear about what you are certifying

Solicitors find themselves being asked to certify matters in a variety of situations - from certifying a person’s identity for a passport application through to certifying complex titles in the context of major corporate transactions but, whatever form of certificate is involved, the principles should be the same as you would apply to any set of instructions.  Don’t certify facts that are not within your own knowledge or which cannot be vouched.

Even in the case of an apparently innocuous certificate, for instance certification of a passport photograph, don’t treat this as a mere formality and don’t bow to pressure from powerful clients to provide a certificate that you should not be providing.  Carefully consider –

  • what exactly you are being asked to certify and what are the precise terms of the certificate
  • It is a statement of the obvious that you should not certify something that you could not possibly justify at a later date.  Don’t, for instance, certify as a true likeness a photograph of someone you have never met before no matter how long you have known members of that individual’s family.  Don’t state that someone is a ‘fit and proper person’ for any particular purpose if you have no basis for saying so. Where solicitors act as countersignatories in support of clients’ applications for Shot Gun Certificates, as well as certifying the likeness of the applicant’s photographs, they are required to certify inter alia ‘to the best of [their] knowledge and belief’ that information provided by the applicant is true.  They are also required to certify that they know of no reason why the applicant should not be permitted to possess a shotgun.  Countersignatories are contacted by a Firearms Enquiry Officer to confirm the details given in the application and to ensure that they fully understand the importance of their role in the application and the consequences of providing false information.  
  • whether there is any provision for the certificate to be provided in qualified terms
  • Perhaps the certificate is a printed document which does not allow for any departure from the printed form of words.    
  • whether you are in a position to certify the position from the information within your knowledge or from the information presented to you

Example:

Solicitors were asked by clients to sign a certificate in which they were (a) to state that they had advised their clients of the terms and conditions of a particular form of investment arrangement being contemplated by the clients and (b) to confirm the clients’ agreement that the investment was suitable for the clients’ purposes.

The solicitors chose not to provide the certificate on the basis that they considered that their clients should only be confirming the suitability of the investment arrangement for them after receiving proper independent financial advice taking into account the clients’ overall personal and financial circumstances.  Presumably, those giving independent financial advice could then have provided the appropriate certificate.

The solicitors concerned were not qualified to give independent financial advice.  In adopting their particular stance, the solicitors concerned refused to bow to pressure to provide the required certificate.  In part, their position could be justified on self-defence grounds on the basis that had they provided the certificate without the clients first receiving independent financial advice, the clients might have levelled criticisms at the firm if the investment proved unsatisfactory in the long run. 

Certificates of title -

The points highlighted above apply equally to Certificates of Title, viz whether or not you are familiar with a particular lender’s “standard” form of documentation, each set of instructions and each certificate/report should be considered individually.  Even if the lender’s instructions appear to be standard or pro forma, you must always consider:

  • if clarification is required in respect of e.g. any ambiguity, unfamiliar terms etc.
  • whether the certificate/report can be granted in the terms demanded/ if qualifications need to be attached.
  • how best to avoid providing commitments in respect of matters which are outwith your knowledge/control.

Be sure to check the file/documentation

It sounds obvious enough to say that we should always read the documentation/file before giving advice or answering clients’ questions where we know that our answers will be acted on.  However,  most of us have found ourselves commenting, giving advice or answering questions off the cuff on the basis of our recollection of the documentation instead of actually verifying our recollection before doing so. 

Sometimes we will find ourselves in that situation because –

  • We can’t find the file
  • The file’s not up to date
  • The documentation isn’t to hand
  • The client is pressing for an instant response

There is no substitute for checking the file/documentation properly rather than making assumptions, relying on one’s memory

Example:

Solicitors acted for a client in taking a lease of additional office premises.  There was a break provision in the lease which the client had insisted on in case the business failed to develop as projected and he no longer needed the extra office space. 

The business did not prosper and the client telephoned his solicitor more than six months prior to the break date to discuss the procedure for terminating the lease.  The solicitor could remember the break provision clearly, or so he thought.  Without checking the lease or the file, he stated confidently that all that needed to be done to terminate the lease was to serve on the landlords a notice exercising the break option not less than 3 months prior to the break date. The client was pleased that the situation was quite so straightforward and congratulated himself for having been smart enough to negotiate the break provision.

In view of the importance of this matter, the solicitor asked the client to confirm in writing that the notice was to be served.  He reassured his client that, with six months and one week left before the break date, there was no great urgency about serving the notice and was not particularly concerned that it took the client a fortnight to confirm his instructions in writing.  He nevertheless got down to drafting the notice as soon as he received the client’s letter.

In drafting the notice, the solicitor did not retrieve the lease from the strongroom but relied instead on the contents of the file.  There was correspondence missing from the file which seemed to come to an abrupt halt with a letter to the landlords’ solicitors with various comments on the latest draft of the lease.  However, there was a copy of a draft lease in the pocket of the file and it seemed to the solicitor that it incorporated the client’s final revisals, all of which confirmed his recollection.

Unfortunately, the revised draft did not reflect the final position.  Somehow or other, the solicitor was forgetting that there had been a further round of revisals after those reflected in the draft on the file.  One of the changes which had been made subsequently was a change to the break provisions which meant that six months’ notice required to be given to terminate the lease.

It was only when the landlords’ solicitors recited the break provision in full in their letter responding to the notice and pointing out that the notice had been received more than a week late that the tenant’s solicitor remembered that the break provision had been altered from the original three months’ notice.

Risk management points:

  • Ensure the file is complete, up to date and in its proper place
  • After completion, ensure that the file, if archived, can be readily retrieved
  • Don’t cut corners - check the documentation and/or file before giving advice on contract terms
  • When drafting supplementary documentation, ensure that you refer to the principals or copies of the final, signed versions of the original documentation
  • Don’t be pressured into giving advice off the cuff based merely on your recollection
The information in this page is (a) intended to provide guidance on matters of practical risk management and not on issues of law and (b) is necessarily of a generalised nature.   It is not specific to any practice or to any individual and should not be relied on as stating the correct legal position. Alistair Sim is Associate Director in the Professional Liabilities Division at Marsh UK Limited Alistair.J.Sim@marsh.com)

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