There has been a number of cases recently of legal advisers preparing wills that have been declared invalid.
The advisers have then been liable to the disappointed beneficiaries, and/or to the estate for the reduction in value arising from the cost of the disputed will.This is an area where the case law is developing fast, and solicitors who do not specialise in the area of will drafting may be unaware of some of the dangers revealed by recent cases.Is your client elderly or mentally frail?If so, you need to consider whether the client satisfies the Banks v Goodfellow test for testamentary capacity.
The will is invalid if the testator fails to fulfil this test under which a testator must understand:-- The nature of the act and its effect;-- The extent of the property of which he is disposing, and;-- The claims to which he ought to give effect.Worby v Rosser  PNLR 140 suggests that a solicitor who drafts a will which is invalid for lack of capacity may be liable to the estate for the costs of the challenge t o the will.
Therefore, it it is important that solicitors satisfy themselves that a client has capacity.
And solicitors should preserve their findings in contemporaneous attendance notes as courts place much less weight on notes that are prepared some time after the event.Inevitably, having to make such enquiries may cause offence to the client.
The best way to overcome this is to have a standard set of written questions which you go through with the client.
You can explain they are required to do so and that the aim is to avoid expensive litigation.The Association of Contentious Trusts and Probate Specialists (ACTPS) -- helped by the Law Society's probate section -- has produced a checklist of matters to be taken into account when assessing mental capacity and the possibility of undue influence.
This was published in the July 2001 probate section newsletter and is also available directly from ACTPS chairman Harry Frydenson of Berwin Leighton Paisner.However, even the use of a well-drafted checklist will not in itself be sufficient protection.
There are other vital precautions.
For example, solicitors should try to follow the golden rule of Mr Justice Templeman (as he then was) which was first stated from Kenward v Adams (1975)CLY 359 November and Re Simpson (1977) 121 Sol Jo 224 (1977) 127 NLJ 487.
The cases were also referred to with approval in Buckenham v Dickens (1997) CLY 661.Mr Justice Templeman said: '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 may be to suggest that precautions be taken..
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.'Mr Justice Rimer in the recent case of Trustees for Great Ormond Street v Rushin LTL 15/5/2000 reiterated the importance of following the golden rule.The recommended precautions of the golden rule are:-- The will should be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and makes a contemporaneous note of his findings;-- Solicitors should consider any earlier will with the medical adviser and, if appropriate, discuss with the client the reason for any changes, and;-- Solicitors should take instructions from the testator in the absence of anyone who stands to benefit or who may have influence over the testator.Although these precautions are eminently sensible, it will often be impossible for practitioners to follow them.
The wills and equity committee points out:-- Hospital staff are often unable to witness.
Most hospitals prohibit doctors and nurses employed by the hospital from witnessing wills.
Therefore, if a client is in hospital try to get a written statement from the doctor in charge of the case of the patient's capacity.
If that is impossible, try to get an oral statement and make an attendance note of the conversation.
In any event, make a full attendance note of your own impression of the client's mental capacity.-- Capacity is not an absolute.
A person may be capable of one thing and not another.
Simply asking a doctor whether or not a client is 'capable' of making a will is not the best way to obtain considered and useful advice.
A solicitor should explain the three elements of the Banks v Goodfellow test and ask the doctor to comment on whether or not the client is capable of fulfilling the test.
The Law Society and the British Medical Association have produced a joint publication, Assessment of Mental Capacity: Guidance for Doctors and Lawyers, which is very helpful.-- Capacity often varies from day to day or hour to hour.
A client must have capacity at the relevant time.
Simply confirming capacity at the time of obtaining instructions is not sufficient.
The client must have sufficient capacity at the time of execution either to read through and approve the contents of the will or to remember giving instructions for the will and to understand that the will has been prepared in accordance with those instructions.-- Clients may object to costs.
Whether the client is in hospital or at home, he may object to the cost of obtaining a medical report.
Solicitors should make a clear attendance note of advice and follow that with a letter if the client continues to object after the dangers of a challenge to the validity of the will after the client's death have been explained.
But solicitors cannot force clients to spend money.-- Clients may wish to be accompanied.
The client may not want to be separated from a close relative or friend when giving instructions for the will.
It is clearly preferable to see the client alone but if the client is adamant, solicitors may have to concede.
Again explain the reasons for the request clearly and make an attendance note.
And be aware of the problems of undue influence.Is there any possibility that the client is being coerced?In the case of wills there is no presumption of undue influence.
The person who alleges undue influence must prove it.
This is generally difficult, as there is normally little direct evidence.
However, there have been some cases recently where undue influence has been claimed successfully (See Killick v Pountney, The Times, April 30 1999).The solicitor's duty is to try to establish whether the client is acting freely, without coercion and with a full understanding of the transaction.
Failure to take reasonable steps may lead to an action to compensate the estate for the costs of disputing the will.Clients may not tell their solicitors the truth, but so long as you have asked for and have received a reasonable explanation for any changes to previous dispositions, you should be protected.
Solicitors should be concerned about the possibility of undue influence in the case of lifetime gifts.
In the Great Ormond Street case referred to earlier, the testatrix had made such substantial lifetime gifts there was little left to pass under her will.
The gifts were held to be invalid.How quickly do you need to prepare the will?Delay is dangerous.
In White v Jones  2 AC 207 a solicitor who took instructions on 17 July was liable to a disappointed beneficiary when the client died on 14 September without a will.
However, a period much shorter than that may be too long.
It depends on what is reasonable in the light of the particular facts.What constitutes delay? In X v Woollcombe Yonge (a firm)  WTLR 301 Mr Justice Neuberger accepted that where a client was elderly or ill but not in immediate danger of death preparing a will within seven days would be reasonable.
However, the facts of the particular case may well require the will to be prepared much more quickly.
In Woollcombe Yonge, Mr Justice Neuberger said: 'Where there is a plain and substantial risk of the client's imminent death, anything other than a handwritten rough codicil prepared on the spot for signature may be negligent.
It is a question of the solicitor's judgement based on his assessment o f the client's age and health.'If you know of a particular reason for haste, he should not agree to prepare the will unless you can do it sufficiently quickly.
Make a clear attendance note of any medical advice received.What property does the client have?Is any property held as beneficial joint tenant? If so, and the client wants to leave his interest away from the other joint tenant(s), you must ensure that the tenancy is severed (most easily by serving a notice of severance on the others).
In Carr-Glynn v Frearson  4 All ER 225, the solicitor was held liable to the disappointed beneficiary for failing to prepare a notice of severance, even though the client was uncertain as to the basis on which she owned her house and had said that she would check the title deeds herself.Solicitors should check whether or not joint bank accounts are genuinely joint or whether one person holds on resulting trust for another.
Failure to do so can give rise to expensive disputes after death.
See Aroso v Coutts & Co (LTL 30 March 2001).Does the client have a power to appoint trust property? If so, remember that a residuary gift in a will exercises a general power of appointment and so prevents any default provision in the trust taking effect.
It is preferable to deal expressly with the power rather than relying on the gift of residue so that there is no risk of argument as to the testator's wishes.
In Gibbons v Nelson  PNLR 734, Blackburne J criticised the solicitor involved for failing to establish the client's intentions with regard to the destination of trust property.Duties in relation to execution of willsMr Justice Longmore in Esterhuizen v Allied Dunbar  2 FLR 668 said that solicitors should offer to oversee execution.
He said that clients are entitled to help with the 'far from simple' task of executing a will.
'It is, in my judgment, not enough just to leave written instructions with the testator.
In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also, in my view, negligent.'For their own protection, solicitors should have in writing an offer in the following terms:-- The client can visit the solicitor's office for execution;-- If the client prefers, the solicitor will visit the client's house with a member of staff;-- The client can make his own arrangements if he prefers.If the will is returned to the solicitor for safe keeping, he should inspect it to check that it appears to have been properly executed.
In Ross v Caunters  3 All ER 580, a solicitor failed to investigate the identity of a witness who shared the same surname and address as one of the beneficiaries.
The witness was married to the beneficiary, who forfeited his entitlement as a result.
The solicitor was liable.In the unreported case of Gray v Richards Butler June 24 1997 it was accepted that a solicitor has a duty to inspect a will returned after execution.