The STEP will-writing code: better than WIQS?

STEP published its new code for will preparation on 13 January 2014. While the provisions are basically good, and many solicitors will already comply with most of it, the code will change the way STEP members deal with wills, with lots of detail needing attention-including revisions to engagement letters. Even non-STEP members may find this code helpful as a sign of reasonable, good practice.

Key features

1. The STEP Code takes effect on 1 April 2014.

2. All STEP members (including student and retired members) must comply.

3. It applies to any work delegated or managed/supervised by a STEP member.

4. All covered by 2 & 3 will need to advise clients of the code and their personal relevant qualifications.

5. Unless work on will preparation is exclusively undertaken by STEP members, those to whom delegated or managed/supervised by members, then firms cannot describe their work as being compliant with the code. Careful thought is needed as to whether the wills work of experienced solicitors, who are not STEP members, can be "managed or supervised" by a STEP member. That may enable firms to describe themselves as complying.

6. Professional executors: firms need to consider how to advise clients on the "appropriateness" of appointments, and how to "put the options …fairly", without which a will should not be prepared appointing someone from the firm.

7. Records of will instructions, normally attendance notes, must be provided to clients, failing which a draft of the will, ahead of executing the will. Where not possible due to urgency, there’s a "greater onus...to provide explanations and encourage questions from the client".

Mental capacity

Para 3 of the code addresses the major issue of doubts about capacity, saying that where there is “an opinion from an appropriately qualified medical practitioner is of great value and may well assist” in deciding whether to proceed. “The will drafter must be aware of the court’s encouragement to involve a medical practitioner and be prepared to comply with it, or have good reasons for concluding that it is not applicable in the circumstances.”

Recognising the “great practical difficulty” faced, that a medical report “almost invariably takes time…while the duty of care to the testator requires the prompt and efficient preparation of a will”; we need to “consider carefully which of the two factors must be given precedence” in each case. Noting that assessing capacity is an inexact science leads to the importance of recording conclusions and the reasoning behind them.

The key role solicitors can play in this balancing act was trumpeted by the Court of Appeal in Hawes v. Burgess (2013) EWCA Civ 74 saying that strong evidence was required to find that a testatrix lacked testamentary capacity when an experienced solicitor contemporaneously recorded his view that she had capacity. The quality of the notes made earned high praise. Given the difficulties of these situations, the STEP Code seems well balanced and, provided we make good records of findings and reasoning, support the experienced lawyer’s position.

Confidentiality issues

Para 4 addresses the problem of a client wanting a family member to sit in on the interview, saying the drafter should ensure no family or intended beneficiary is present-while accepting that sometimes “this may not be possible”!

In that case “provide a careful explanation of the potential challenge to the terms of the will; and take careful note of the third party’s participation” in case of later dispute. For me, it’s critical whether the will is doing something straightforward, e.g. equal treatment of all children/grandchildren, or prefers one beneficiary over siblings etc for no apparent reason.

The difficulties advising here were featured in the case of Hart and Samways v. Burbidge (2013) EWHC 1628 Ch where the will’s terms were undermined by gifts made shortly afterwards and clients not taking legal advice given. Where “presumed undue influence” arises, even where there is no deliberate wrongdoing, the burden of proof shifts. As Mummery LJ said in Niersmans v. Pesticcio (2004) EWCA Civ 372: “The participation of a solicitor is not…a precaution which is guaranteed to work in every case.”

The court must be satisfied that “the advice and explanation by….a solicitor was relevant and effective to free the donor from the impairment of influence on his free will and to give him the necessary independence of judgment and freedom to make choices with the full appreciation of what he was doing”. We have been warned - the code is not unhelpful here.

Although the two month lead-in time is short, the code is generally balanced and positive. Whereas the Law Society’s
WIQS was rather excessive, this is much better, and STEP members have no option but to comply with it! SJ