Wills and modern tech guidelines

The Law Society offers its recommendations for solicitors who prepare wills without a prior meeting with the client

With the huge advances made in recent years in modern technology, the Law Society's wills and equity committee has been considering what guidance should be given to the profession where solicitors take or receive instructions from clients - particularly new clients - for wills without seeing or meeting those clients in person.

In such circumstances the committee recommends that the profession be aware of the following important issues:X Compliance with the Society's practice rule 15 as to costs and client care;X Procedure needed to ensure that the instructions are those of the testator and not someone else on his behalf;X The testator being of sound testamentary capacity and meeting the legal test for capacity needed to make a will;X The dangers of undue influence and fraud;X The ability or otherwise of the testator to produce a proper and suitable engrossment of the will for signing where the draft has been supplied either on the internet or by e-mail;X Due execution of the will by the testator under the wills Acts with reference to the potential problems caused by the decisions in Ross v Caunters and Esterhuizen v Allied Dunbar;X The need to obtain full instructions from the testator as to both the nature, value extent of tax on his estate and the intended and potential beneficiaries;X The solicitor's duty of care owed to his client (the testator) and any disappointed beneficiaries;X Care needed in preparing retainers and terms of business;X The need to follow any e-commerce guidelines published by the Law Society and to update regularly any information published on the Web site (see [2000} Gazette, 31 May, 49);Because a will is such an important document to any testator, the committee considers that solicitors should think carefully before drafting or preparing any will for a client based on instructions received either orally or in writing without meeting the client, unless that client is already well known to the solicitor.Some software suppliers are drawing a distinction between:X preparing a packaged product to an intending testator who just downloads a template for a will from the solicitor's Web site and then completes his will without further assistance; and X providing the client with a will prepared in response to questions answered by the client through the solicitor's Web site.

It is being suggested that the testator under the first method is merely a customer to whom no duty of care is owed, while the client in the latter case is owed a full duty of care including compliance with practice rule 15.

While disclaimers and retainers may be prepared to make to this distinction, the committee has no evidence that they will guarantee protection if the matter were to come before the court.Solicitors should send their views on the topic to: e-mail: michael.lunn@lawsociety.org.uk; Michael Lunn, secretary of the wills and equity committee, the Policy Directorate, the Law Society, 113 Chancery Lane, London WC2A1PL; DX 56 London/Chancery Lane.