More haste, less speed?

Negligence in practice is not taken lightly. A solicitor who fails to give effect to the testator’s wishes may be liable to compensate the intended beneficiaries for their loss, as confirmed in White v Jones. Practitioners faced with making an urgent will for a client, usually near death, take a high risk. And making a will for an incapable client exposes them to a claim for costs in any validity claim.

Will-writing errors are all too common, so there is plenty to learn from the mistakes of others.

And so it begins ?
Often overlooked is the fact that your retainer starts when you take the initial telephone call and agree to undertake the instructions. Endeavour, therefore, to see the client as soon as possible. If workload means that an appointment is not immediately available then simply decline to act.

Has the client got capacity?
It is essential to ensure you are satisfied that the client is capable of giving valid instructions to make a will – the so-called ‘golden rule’ test. You must be alert to an individual’s ability to hide incapacity (not uncommon for those with dementia) and ensure that you obtain a clinical assessment of the client’s capacity to give instructions. The high bar of getting a medical professional to witness the will is not usually possible, but at a minimum you should have an informal assessment to record on the file yourself.

Is the client instructing you?
A dying client is likely to be assisted by relatives or carers. It is entirely proper to ask for their assistance, but you should be alert to the family dynamics. Are there obvious signs that one relative is being ?a bit too pushy? Is there any risk of undue influence? In a case we handled recently, a solicitor had made a will for a gravely ill client by shuttling between the client and his partner to get instructions: he told her what he wanted to achieve; she told him something different and gave entirely the wrong information about the client’s assets, so the will ?did not reflect the client’s intentions.

Act now
If the client can give instructions and you are satisfied that the client has capacity, do not delay getting the will made and executed. The key is to always act as quickly as is reasonably practicable – to act without unreasonable delay.

The general opinion is that seven to ten days is acceptable for preparing a will. It would, however, be unwise to rely on that as a hard and fast rule: there is no case law stating what a reasonable period should be and each case will turn on its own specific facts. A delay of a day or even hours may be difficult to justify if a client’s condition is life-threatening. If there is any delay, the client, a family member or an appropriate third party should be given ?an estimate of how long the preparation will take. They can be advised that if a sudden deterioration occurs you can be contacted and action taken accordingly.

Short-term fix
Consider whether a temporary will would be appropriate. For example, if the instructions pose significant tax issues but the client’s intentions are clear then a temporary solution may be better than none. It is thus good practice to go prepared with the ability to make a holding will on a laptop/portable printer or with that most reliable of old technologies: a pen and paper. If this is not possible, make the will on your return to the office and get it to the client to execute the same day.

In another recent case of ours, the solicitor, who was instructed on a Tuesday (and who had been told by the clinicians that the client could die at any moment) turned up to the hospital the following Friday, will in hand, but too late. The client had died that morning. It left their insurers to pay the value of the entire estate plus costs.

The latter point may be an extreme story, but the point is clear: know your client and make the will without delay.

Lloyd Junor is an associate at Thomas Eggar

He writes the regular in-practice article on wealth structuring for Private Client Adviser

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