Will-writing pitfalls

Following the case of White v Jones, the House of Lords confirmed that a solicitor who negligently fails to give effect to the testator's wishes may be liable to compensate the intended beneficiaries for the loss of their interest in the estate. In disputes where the will was not executed before loss of capacity and/or death, disappointed beneficiaries often suggest that the solicitor is at fault through unnecessary delay.

So, when taking instructions for a will when there is a risk of loss of capacity or death before execution, how can a practitioner avoid the suggestion that the failure to execute was the fault of the solicitor?

Do not delay. It is an often overlooked fact that one's retainer starts when you take the initial phone call and agree to undertake the instructions. Endeavour therefore to see the client as soon as possible. If the client or someone on their behalf explains that the client is hospitalised and/or in poor health do not delay the appointment. If one's workload means that an appointment is not immediately available then simply decline to act.

Ensure that one is suitably qualified. Only rarely is the office junior sufficiently experienced to attend the client. A seasoned will writer will have a better sense of how urgently matters need attending to. It is often more cost effective to send a junior member of staff to attend such appointments, but try to resist as there is often no substitute for experience.

Be observant. Upon attendance there will often be tell tale signs that a client's condition is possibly more critical than initially understood. The client's behaviour or appearance will provide a good indication but so might reliance on bottled oxygen, the client being bedridden or connected to various monitors, or the level of medical attention required if the client is hospitalised.

Do not be afraid to ask. However insensitive it may appear, whenever possible ask the client if there is anything that may affect their ability to execute the will such as the likelihood of deterioration in their condition due to any illness, medication or proposed treatment. If the client is unable to provide such information or simply doesn't know then ask a third party, whether that be a family member or the attending medical professional. Establish as much information as you can during your initial phone conversation when it may be easier to ask.

Be prepared. Once instructions have been provided consider whether a temporary will would be appropriate. For example, if the instructions are to significantly alter the destination of the testator's assets, but also require some consideration of complicated tax issues, then a temporary handwritten solution may be better than none and ideally one should be ready to draft such a will on the spot particularly if the client is seriously ill and their condition is likely to deteriorate.

Do not just leave it to the client. One is not automatically presented with a 'get out of jail free' card simply because of delays by the client. It would be difficult to argue that the failure to execute was because one was waiting for the client to confirm an address or the correct spelling of a name when that information could easily have been obtained at the initial meeting if the correct questions had been asked. A will with a misspelt name is almost certainly better than no will at all.

The client may of course delay because of a change of heart after instructions have been provided and the will prepared. In that case one should ensure that all reasonable steps have been taken to alert the client to the possible consequences of failing to execute the will and a written record of such steps should be kept.

Liability for failure to execute when an engrossed copy has been sent to the client can be avoided if the client provided their specific agreement at the initial meeting (preferably in writing) to being sent an engrossed copy for execution by them.

One must, however, assess one's client and what their needs are regarding the execution process and ensure that the client understands and is able to fulfil the requirements of due execution. Just to send a letter to an elderly and isolated client instructing them to arrange to sign in front of two witnesses may be insufficient. There may be no option but to arrange for prompt personal attendance.

How long? Opinion is mixed but there appears to be a general opinion that seven to ten days to prepare a will is acceptable. But don't rely on that as a hard and fast rule. There is no case law stating what a reasonable period would be, and remember that each case will turn on its own specific facts. A delay of a day or even hours may be difficult to justify under cross-examination when considered in light of a client's life-threatening condition.

Always act as quickly as is reasonably practicable. If there is to be 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 in the testator's condition you can be contacted and action taken accordingly.

Finally. Remember that in the event of a potential claim your actions and your file will be subject to detailed scrutiny. Always consider how your actions would be looked at objectively and record them carefully.