Following the recent publication of its Red Flag Checklist for wills, Lockton highlights some of the risk management issues to be aware of when drafting wills

"And my wife will want the same,” said Mr Miggins, across the table. On this occasion, he wasn’t ordering eggs Benedict. He was, in fact, discussing his will with Eleanor Bampton, his solicitor. Luckily, Eleanor was a careful solicitor.

She knew the potential pitfalls regarding taking instructions from a third party. “I’m sorry, Mr Miggins, but I’ll need to speak to your wife directly if she wants to make a will too,” she replied.

Taking instructions from anyone other than the client is dangerous territory. In relation to drafting a will, it could result in the will being challenged and could quite easily give rise to a claim or complaint. A solicitor should ensure that he or she has the proper authority to act.

“Well, she’s in France at the moment,” said Mr Miggins, casually. “We own a cottage in the Midi-Pyrénées.” Eleanor hesitated. The clients have joint property in France? How would that be dealt with? Would the firm be able to consult a French lawyer? What would the cost implications be?

Where there are overseas assets, there is always the risk that the client will expect the solicitor to deal with laws in a foreign jurisdiction. In these circumstances, solicitors will often advise clients to seek the advice of someone specialised in the laws of that country. It’s up to the solicitor to manage these issues up front and early on.

Will writing risks

Any solicitor who is tasked with drafting and preparing a will should be on their guard for potential problems that might arise. The example of the client-solicitor exchange above highlights just two areas where caution is required in relation to will instructions, but there are, of course, many others. Solicitors have to be aware of these issues, in order to manage the expectations of their clients and also to protect themselves against accusations that what should have been done was not done.

The drafting of a will is often a much more complicated and technical task than it first appears, and frequently involves complex legal and financial matters that might include issues of tax, trusts and property rights.

If problems arise in the will drafting process, these can lead to profound repercussions for bereaved families and loved ones. Disappointed beneficiaries can be faced with an uncertain and difficult process to resolve problems and seek redress, at a time of great emotional difficulty. This can lead to difficult discussions, allegations of negligence and, of course, complaints and Master Policy claims.

Practical tips

Here are some practical tips from a risk management perspective:

1. Use checklists

Using a checklist will help ensure that the testator’s wishes are followed and also protect your own position in the process.

There have been various checklists produced over the years, and most practitioners involved in will writing will already have some form of procedural checklist in place.

We have recently published a “Red Flag Checklist”, which highlights areas which, in our experience, can lead to issues with clients or Master Policy claims. This includes issues such as where the client has heritable assets overseas, as in the example above. The Red Flag Checklist is broken down into areas of consideration for each stage of the transaction: initial instructions; taking instructions; drafting the will; and execution of the will and storage. The checklist comes, not only with a yes/no tick box, but also with some helpful text regarding points which may require further consideration.

The Red Flag Checklist does not document all the various steps in the process. It will, however, hopefully give solicitors some ideas for how to avoid the potential pitfalls and issues to be aware of when drafting a will.

2. Avoid delay

Obviously, the will must be drafted in a timely manner. Delay can result in a will not being drawn up or not being executed before the client passes away. In order to avoid delay, it’s important that solicitors are conscious of when they receive instructions and how long it is likely to take them to implement those instructions.

If a solicitor is unable to complete the work within a reasonable time frame, he or she might want to consider refusing the instruction or passing it to someone else within the firm who can complete the work timeously.

3. Write it down

It is crucial to write down matters at the time of a meeting or discussion, or as soon as practicable afterwards. A lack of file notes and written records will cause significant problems in presenting a successful defence in the event of a claim. As well as completing detailed attendance notes, you might want to confirm the client’s instructions and put your advice in writing prior to them signing the will.

In order to protect yourself, you need to ensure that you have a written record of all of your conversations with your client regarding:

  • the estate and their wishes;
  • your assessment of their capacity;
  • the advice you have given.

4. Use the Society’s Vulnerable Client guidance

When considering a person’s capacity, the Law Society of Scotland’s guidance should be followed, specifically the Vulnerable Client guidance. This guidance deals with situations where a client or a prospective client of whatever age potentially lacks full capacity, whether having attained the legal age of capacity or not. It also applies where a client or prospective client might be subject to undue influence or other factors which might vitiate the transaction. The guidance sets out factors to be considered in a number of situations, and specifically references the making of wills or powers of attorney. Following the guidance, and recording the steps that you have taken to follow it, will make it more difficult for anyone to criticise your conduct in respect of preparing the will.

In cases of doubt as to the extent to which, and circumstances in which, capacity can be exercised, or conversely as to the extent to which incapacity prevents a contemplated act or transaction, the advice of a medical practitioner or clinical psychologist should be sought.

5. Ensure the will is properly executed

It is clearly crucial that the will is properly executed.

Ideally, you will always be in the presence of your client when they sign and date the will. Sometimes, however, this may not be possible (and see comments below on the emergency situation regarding the coronavirus).

A solicitor might send the will out for signature, but this can give rise to difficulties. For example, a client might misunderstand the instructions and a busy practitioner might fail to examine the will fully on its return. If the will is to be sent out for execution, it should have an accompanying letter, with clear and detailed instructions on how the will is to be signed and witnessed. The returned will then needs to be checked carefully in order to ensure that it meets with the client’s instructions and that it has been executed properly.

6. Coronavirus issues

At the time of writing, the coronavirus is spreading in the UK. The Government and the NHS are seeking ways to minimise its spread. To comply with the restrictions on individuals’ movement, many law firms have rolled out remote working across the practice, to protect the health and wellbeing of their employees and clients. This is likely to have an impact on solicitors who are involved in drafting wills, given that much of this type of work relies on face-to-face contact and home visits.

There will be a number of solicitors with concerns about carrying out face-to-face meetings, in particular with vulnerable clients.

For firms that have introduced remote working, it is possible that telephone-based or online services and tools can be utilised, at least to some extent, for will writing. In relation to vulnerable clients, the position is likely to be more complicated, and advice should be sought. It will be important to follow guidance from the Law Society of Scotland and seek advice from health professionals.

Find our resources

There is not the scope within this article to discuss the various matters covered within the Red Flag Checklist, available on the Resource Centre at www.locktonlaw.scot. We would encourage practitioners to review the checklist and provide feedback.

Finally, it should be remembered that many people making wills will be elderly, ill, or vulnerable and, as such, client care will be of paramount importance in these matters.

The Author

Matthew Thomson is a client executive in the Master Policy team at Lockton. He worked as a solicitor in private practice before joining the Law Society of Scotland in 2011, and then Lockton in September 2018, dealing with all aspects of client service and risk management.

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