Up to the challenge

Claims arising from death are on the up, be they claims challenging the validity of wills, claims for reasonable financial provision under The Inheritance (Provision for Family and Dependants) Act 1975, or claims asserting a proprietary estoppel/constructive trust effecting the net value of estates.

Why is this? Increased property prices have swelled estates, making claims worthwhile propositions for those who are disappointed by the contents of a will or the effect of an intestacy. More families are fragmented. Testators may have second families, step-children, cohabitants or other dependants, and relations between them can be fraught. People are living longer. They can become close to friends or carers later in life, and want to express gratitude to them by making testamentary gifts '“ often at the expense of family members who may disapprove. The public are more aware of their rights thanks to high-profile cases attracting media coverage, the most recent being Gill v Woodhall and others [2009] where the daughter of a wealthy testatrix succeeded in challenging her will gifting the family farm to the RSPCA on the grounds of proprietary estoppel and undue influence (see Solicitors Journal 153/39, 20 October 2009).

So, what is the position of a solicitor who drafts a will which is then challenged or which it is alleged fails to make reasonable financial provision, and how can they protect themselves from criticism and claims?

Making full disclosure

The first consideration is one of disclosure. The Court of Appeal made it clear in Larke v Nugus [2000] WTLR 1033 that a will draftsman is expected to provide a statement of evidence about the execution of a will and all matters surrounding its making which are relevant to a serious dispute about validity. The principle is now enshrined in the Law Society's 'Disputed Wills Practice Note' of 16 April 2009, which warns that those who fail to provide information are potentially exposed to adverse costs orders or claims for loss equating to the amount by which an estate is depleted because of probate litigation costs, which could have been avoided had disclosure been made. The key therefore is to make full disclosure about the will making process early on, and not to be clouded by any sense of loyalty to the testator by resisting legitimate requests for information and documents. Selective disclosure can also be unhelpful. It often raises no more than a claimant's suspicion.

The practice note applies only to disputed wills, not to claims for reasonable financial provision. The principle of making information available which might avoid litigation (e.g. an attendance note recording reasonable reasons why a person has been excluded as beneficiary) is arguably, however, the same, and is a point to be made to executors, who will need to be advised about appropriate pre-action conduct and protocol.

Avoiding capacity claims

The validity of a will can be challenged on a number of grounds. The ground which might trouble the will draftsman most is lack of capacity, because it carries with it the possibility that a will was prepared negligently and costly litigation is needed to determine the issue which could then become the liability of the negligent solicitor. It is therefore the job of the will draftsman to help avoid the possibility of capacity claims by preparing detailed attendance notes and, where appropriate, observing what Templeman J termed the 'golden but tactless rule' wherein the wills of 'aged testators' or testators who have suffered a 'serious illness' are witnessed and approved by medical practitioners. Templeman J suggested other precautions are taken such as discussing departures from previous wills, and taking instructions in the absence of anyone who stands to benefit. These should all be contemporaneously documented, together with observations about the testator's demeanour and any other factors which lead the solicitor to conclude his client had capacity.

As Templeman J pointed out in Re Simpson [1977]: 'If proper precautions are not taken injustice may result or be imagined and great expense and misery may be unnecessarily caused.'

There are dilemmas though. What is the solicitor's position if he doubts his client's capacity, recommends medical input, but is expressly instructed to prepare the will and oversee execution without it? Should he refuse or should he proceed in the knowledge that the will may well be declared invalid?

Is his duty restricted only to advising his client of the consequences ofproceeding?

Giving advice

When taking instructions, solicitors should also offer advice about the categories of eligible claimant under The Inheritance Act, and should attempt some assessment of the provision a court may make were a claim to be made. This can be an almost impossible task, because it is notoriously difficult to predict the likely discretionary award and because the matters to be taken into account are matters as at the date of trial as opposed to the date on which the will is made. Nonetheless, some effort should be made to advise, and a record made of the advice given and the objectively reasonable and sustainable reasons for the testator's decision in providing (or not providing) for eligible claimants. Unreasonable reasons can be evidence in themselves of unreasonable provision, so care should be taken and the client advised that a claim may well have the effect of reducing the estate available for distribution. Failure to give this advice is arguably negligent and exposes solicitors to the possibility of claims for the costs of Inheritance Act litigation in much the same way as breaches of duty can expose them to claims for the costs of rectification, or probate proceedings.

A final word of caution; a firm which drafts a will, which is then challenged, should consider very carefully the propriety of acting in litigation for the parties resisting the challenge. There is likely to be a conflict of interest. The firm will have duties to advise about the deficiencies of the defence and this may sit uncomfortably with a potential claim in negligence against a solicitor who failed to take precautions at the will instruction stage.