Good client care should be an essential part of will writing

Following my previous article on the subject (see Solicitors Journal, Vol 158 No 22, 3 June 2014), two more important practice issues arise from the SRA guidance on will writing that was issued on 6 May 2014.

The SRA ‘reminds’ us of our need to exercise judgment in deciding how to achieve the right outcomes for clients, bearing in mind the distinction between ‘must’ and ‘should’ do; it is not essential, but on your head be it if you don’t and can’t justify the reasoning for your course of action.

Appropriate controls

The SRA guidance says ‘you should’ ensure you address issues such as:

• Ensuring testamentary capacity and, where appropriate, that a doctor’s opinion is obtained as evidence. What is your system and control for this? The STEP Code for Will Preparation paragraph 3 is very good here, with ‘the great practical difficulty’ of the time taken to get a medical report; how do you balance the value of medical evidence against the need for prompt and efficient will preparation? A good record of the conclusions reached is key. Helpful comments were made by the Court of Appeal in the recent case of Hawes v Burgess (2013) WTLR 453 on the value of a good note from an experienced, independent lawyer.
• Undue influence and fraud – especially with an online service and wherever there is no face-to-face contact with the client.
• Ensuring full information regarding the client’s assets and immediate family is obtained. No doubt regularly done, but do you have a system and control in place to ensure this? If a client will not give you information, your system could have a letter to sign to confirm they have been advised of the value of this but nonetheless have rejected.
• Reasons for excluding a family member who might be expected to benefit are recorded and the implications explained. See the STEP Code paragraph 9.
• Wills are drafted in a timely manner – see STEP Code paragraphs 7 and 3 regarding capacity. Also, clients not returning wills in a timely manner being chased – what is your system? If a client dies after you have sent out a draft, it would be good to record the practice for chasing that you followed.
• If the firm has not supervised execution, that wills are checked on return to ensure they have been properly executed – in so far as that is possible.

A checklist is indispensable here, along with training for staff to ensure they see this as real substance and not just a box-ticking exercise.

Storage systems

This is more than a formality given the historic importance of the ‘wills bank’ in the strong room of many practices. The new official wills storage facility at the Probate Service, which charges a low flat fee (currently £20), changes our obligations. We ‘should’ now bring this, and all the options, to our client’s attention, even if we do not charge for storing wills, as ‘it may be more convenient for some executors if a will is stored by a central official service.’

The value of keeping the will in a bank or your office ‘where it can be retrieved… speedily by their executors or if they wish to alter their will’ is recognised, but we need to ‘sell’ these
benefits more.

Helpfully, the guidance tells us to advise clients to keep the will under regular review so frequent email or postal contact is officially encouraged.

Following the SRA guide is only a start, and a base on
which to build, and the STEP Code offers more useful
practice ideas. SJ

John Bunker is the head of private client knowledge management at Thomas Eggar