In depth: Poor communication driving complaints, private client conference hears

One topic dominated this year’s private client conference at Chancery Lane – the Law Commission’s long-awaited report on wills reform, which was published a few days earlier.

The report has been long in the making, as law commissioner Professor Nick Hopkins (pictured) explained during the day’s final session.

The commission was asked in 2015 to do a scoping report. Following a consultation, the government asked it to pause work and concentrate on weddings. Wills was picked up again post-Covid with a supplementary consultation paper in 2023. ‘At the risk of making virtue out of vice, that pause has ultimately been beneficial because attitudes to electronic wills and marriage revoking a will changed in that period of time,’ Hopkins said.

The commissioner talked through some of the report’s key recommendations. Electronic wills should be permitted. The rule that marriage revokes a will should be abolished. The age for making a will should be lowered from 18 to 16. Only the Mental Capacity Act test should apply to the question of testamentary capacity. The courts should be allowed to deem a will valid where the formality requirements have not been fully met but the deceased’s intentions are clear. The commission’s draft Wills Bill repeals the 1837 act.

Most private client practitioners agree that the 1837 act should be replaced with new legislation. However, Stephen Lawson, chair of the Law Society’s wills and equity committee, predicted many more court battles if, per the commission’s recommendations, judges are empowered to infer undue influence. ‘It is one of the most common allegations clients make but one of the most difficult to prove,’ he told the conference.

On marriage no longer revoking a will, ‘you have got to consider the role of cohabitees’, Lawson noted.

The conference covered other important ground. With probate and estate administration generating the third-highest volume of reports to the Solicitors Regulation Authority, and some of the largest and most frequent payments from the compensation fund, the regulator shared examples of best and poor practice during its most recent thematic review.

'We’re not just called on to be advisers about the law anymore. There is a huge element of counselling, ethics and morality that pervades the decisions our clients want to make. They do not care about the legals'

James Lister, Stevens & Bolton

Shortcomings in law firm communications were a big driver of client dissatisfaction, SRA regulatory managers Mel Lothbrok and Siobhan Fennell said. The regulator was surprised to find significant variations in written information given to clients about the estate administration process, given that many people will know little about it. Some firms were providing written information too late in the day, while some regularly exceeded cost estimates without warning clients.

Lothbrok and Fennell said clients should receive the best possible information at the outset and firms should have efficient processes for managing costs, with clients being updated right through to the end of the retainer.

The regulator is also concerned about compliance with accounts rules. The conference heard that one firm obtained a qualified accountant’s report but failed to submit it to the SRA. Another firm did not obtain one for several years. A tip for firms: consider asking your accountant for feedback on the strength of your financial controls to address issues and prevent problems down the line.

The conference also covered key changes to personal taxation, the complexities of farming families, understanding the Official Solicitor’s role in Court of Protection applications, mental capacity assessments and revoking deputyships, and AI.

The key takeaway from a session on ‘advising modern families’ was undoubtedly the fact that in surrogacy, the mother or father are not the legal parents of their child in the jurisdiction of England and Wales if they do not have a parental order.

Gender has become another important consideration, the conference heard. James Lister, head of private wealth disputes at Stevens & Bolton, said solicitors are used to drafting and advising on will documents that define beneficiaries by reference to their gender. But  ‘when you’re using protected characteristics to define your beneficiaries, you trespass into dangerous territory’.

Lister added: ‘We’re not just called on to be advisers about the law anymore. There is a huge element of counselling, ethics and morality that pervades the decisions our clients want to make. They do not care about the legals.’ If clients are tied to a set of values they do not ascribe to, ‘we’re creating a large set of problems’.

Electronic wills may not arrive soon – the government’s full response is expected within 12 months – but as the conference showed, private client specialists have plenty of other issues to focus on in the meantime.