The role of the Will Draftsman
1
Before death
1.1
Requirements/guidelines
A will is an important document and the draftsman is often dealing with potentially
vulnerable individuals. Substantial guidance therefore exists to try to ensure that the
will draftsmen act properly and in their clients' best interests. Several sets of rules
and codes of practice may apply, including those published by the Law Society, the
Solicitors Regulation Authority and the Society of Trust & Estate Practitioners ("STEP").
The first two apply to all solicitors but not to other will writers. Will writing itself
not a regulated activity (despite recent calls for it to be made one) and can be
carried out by anyone without any specific qualifications or regulation.
1.2
Records
The draftsman should take adequate notes of all aspects of the instructions and
advice and should preserve the notes in the will file. It is important that the client
should have the opportunity to ask questions and resolve any confusion about the will
so the draftsman should either provide the client with a record of the draftsman's
understanding of the instructions, or give the client an opportunity to review a draft
before signing.
Many firms have a policy of destroying client files after a certain period of time has
passed. Will files should be an exception to any such policy.
1.3
Identity of client
Ideally, the draftsman should always meet the client and take instructions from them
in person. However, in rare cases this may not be possible, for example if the client
lives in another country. Where the draftsman has to take instructions from an
intermediary, he can only act if he can verify that:
-
the intermediary has been authorised by the client;
-
the client is not subject to coercion or undue influence; and
-
the client has mental capacity.
Normally, the draftsman must ensure that they have an opportunity to discuss the will
with the client and take instructions with no third party present. It is accepted that
this is not always practical, for example in the case of an elderly client who insists on
remaining with their child, but in such cases the draftsman must take care
(particularly if the third party will also be a beneficiary under the will). The
draftsman must explain that the presence of a third party could give rise to a
potential challenge to the will and should take a careful note of the third party's
involvement in the meeting.
Where acting for multiple clients (most commonly spouses or civil partners) it is
common for the draftsman to make both wills together. However, a solicitor
draftsman still owes a separate duty of client confidentiality to each of the clients.
Clients may elect to waive this, but the solicitor should check the issue beforehand
and ask whether the clients are happy to give instructions in each other's presence.
There is potential for a conflict of interest, for example if one client believes that the
wills will mirror each other, while the other secretly wishes to change the terms of
their will to benefit someone else, in which case the draftsman may well be unable to
act.
1.4
Timeframe
The draftsman should deal with the entire will-preparation process promptly. They
must establish if there are any particular circumstances that give rise to urgency,
such as a medical procedure or long journey, and act accordingly.
It is accepted that in circumstances of extreme urgency, for example where a client is
very close to death and wishes to make a death-bed will, it may not be possible to
comply all the usual requirements. The draftsman must still comply with the
requirements as fully as possible and must ensure that any "shortcuts" do not
adversely affect the client or any intended beneficiary.
1.5
Particular issues in the will
1.5.1
Professional executors
In some circumstances, it can be helpful to appoint a professional executor,
particularly if the estate is large or contains complex assets or trust
interests. However, the draftsman must make it clear to the client that
there is no legal requirement to do so.
It is not automatically improper for a draftsman to prepare a will appointing
himself or a colleague in his firm as an executor but, particularly as
professional executors usually charge for their work, there is a clear risk of
conflict. The draftsman must not encourage the client to appoint him unless
it is genuinely in the client's best interests and the client must be able to
make a fully-informed decision. If the client does wish to appoint the
draftsman, the advice should be carefully recorded on the file.
1.5.2
Gifts to the draftsman
Obvious concerns can arise where a will contains a gift to the draftsman (or
to a relative or colleague of the draftsman). How serious the concerns are
will depend on the size of the gift. If the gift is significant, either taken by
itself and in comparison to the overall size of the estate, the draftsman
should usually cease acting and advise the client to take advice from another
lawyer.
There are exceptions where it would be customary for the testator to be leaving the
draftsman a legacy. The most common example would be where a draftsman is
preparing a will for a close relative. If possible, it is still best practice for the
draftsman to encourage their relative to use the services of another draftsman but, if
this is not practical, the draftsman may act. However, they should take care if there
are any oddities in the terms of their benefit under the will or if the will is at all
likely to prove controversial. For example, if the draftsman's parent has several
children but the draftsman is asked to prepare a will by which he receives all or a
larger share of the estate under the will, he should certainly not act.
1.6
Mental capacity
The general rule is that a draftsman must not prepare a will where they have grounds
to believe that the client lacks sufficient mental capacity, unless they see appropriate
medical evidence to the contrary. Where the draftsman has any doubt about the
client's capacity, he should take steps to ascertain the point.
This principle has traditionally been espoused in the so-called "Golden Rule" which
states that, whenever a draftsman is preparing a will for an elderly or seriously-ill
client, the will should be witnessed by a medical professional who has satisfied
himself that the client has sufficient mental capacity.
The Golden Rule is undoubtedly helpful and should always be borne in mind as the
first option where there are mental capacity concerns, but treating it as an inviolate,
blanket solution can cause difficulties. First, obtaining medical advice inevitably
takes time. In some cases, particularly where a client is seriously ill, such a delay is
simply not an option. Suggestions have also been raised that a GP with no specialist
mental capacity training and who increasingly may not have an ongoing relationship
with the particular client may not be particularly well-placed to give a view on their
capacity. It is accepted that individuals with diminishing capacity can become adept
at concealing their difficulties with social niceties and it can be difficult to assess
their capacity from a single meeting. Even where a GP or other medical practitioner
does give their opinion, this is not determinative and certainly does not guarantee
that the issue cannot still be challenged after death.
A draftsman should always be alert for mental capacity issues but it need not be a
particular concern in most cases. If the client gives no cause for concern and there is
nothing in their background to raise the issue, the draftsman need not take further
steps. The level of mental capacity required to make a will is that set out in the
Banks v Goodfellow test and the two main issues that this covers - that the client
must be aware of the scope of their assets and the possible claims and expectations
from potential beneficiaries - are precisely the topics that any draftsman should
cover in the course of his normal work. Any mental capacity issues will therefore
often emerge in the normal course of the will-drafting process
However, as mentioned above, clients with capacity issues can become adept at
covering these, particularly if they are accompanied by family members. Elderly
client can lean on spouses or younger relatives and allow them, often quite subtly and
unintentionally, to give them significant support. Couples in particular can become
very accustomed to supporting each other, compensating for gaps in each other's
abilities.
If there are concerns, there are no set tests to check for mental capacity.
Traditionally, the "mini-mental state examination" was often used. It is generally
accepted that this is no longer appropriate in the context of will instructions. The
questions are not relevant for the requirements of Banks v Goodfellow and the test
itself can seem threatening or patronising.
The contents of the instructions can also raise concerns that warrant further
investigation. Drastic changes from a previous will, for example removing a child or
friend without clear explanation, may give rise to capacity concerns. Pragmatically,
the more controversial a will is, the more likely it may also be to be challenged after
death. If a will contains unusual provisions, such as excluding a child or removing a
large legacy from an earlier will, the draftsman should be particularly careful to
record both his conclusions as to the client's capacity and the factors that led to that
conclusion.
1.7
Further advice
The draftsman should consider whether the client requires further advice on related
topics outside the will itself. Two particular areas will often be relevant:
1.7.1
Future litigation
If the will is likely to be controversial or there is an unusually high risk of
litigation (e.g. if one or more family members who might expect to inherit
are excluded) the draftsman must bring this to the client's attention and
suggest that they take further advice on how the risks can be reduced.
1.7.2
Tax advice
Many wills will have inheritance tax or other tax implications. If tax may be
an issue, the draftsman should again raise this to the client's attention and
suggest that they receive suitable advice.
In either case, if the client wants further advice, the draftsman should either provide
it or, if they do not feel able to do so, should assist the client in obtaining advice
from another source. If the client declines further advice however, there is of course
then no requirement for the draftsman to assist.
2
After death
Where a challenge to a will is envisaged, information from the draftsman who
prepared it will usually be vital and it is common to approach the draftsman and ask
him to provide details or to release his will file. However, the draftsman may be
reluctant to assist. First, he may feel that he owed a duty of confidentiality to the
client and be unwilling to release information to a third party. Secondly, and more
prosaically, they may simply struggle not to take the enquiry as a personal criticism of
their work and may fear a potential negligence claim in the future. Whether these
fears are justified or not, it is unsurprising that, in practice, draftsmen may not be
particularly cooperative.
2.1
Larke v Nugus
This issue was addressed in the case of Larke v Nugus. The testatrix, Mrs Moss, had
died leaving a will that left her property to her two carers. Her closest surviving
relatives, her niece and nephew, were concerned by the suspicious circumstances and
began investigating a possible challenge to the will. (The nephew died before the
proceedings started and the claim was brought by the niece, Henrietta Nugus, alone).
Henrietta approached the draftsman, Mr Larke, who was also an executor of the
estate, and asked him to release information from his will file concerning the
instructions and the gift of the property. Mr Large refused and, despite being asked a
further four times, persisted in refusing to provide any information or assistance.
Eventually, Henrietta issued proceedings to challenge the will and Mr Larke was
compelled to give evidence in court. In the event, his evidence made it clear that,
despite the potentially suspicious nature of the gift, the will was entirely valid and
Henrietta dropped her claim. The court then turned to the question of costs.
Normally, as Henrietta had issued a claim but then abandoned it, she would be
expected to pay all of Mr Larke's costs arising from the proceedings. However, the
court concluded that this was not appropriate here. Mr Larke should have known that
his evidence would be key to establishing the validity of the will. Given the
potentially suspicious nature of the gift of the property, Henrietta was quite entitled
to have the position checked and, in the face of Mr Larke's complete refusal to assist,
she was left through no fault of her own with no recourse other than incurring the
expense of formal court proceedings. The court therefore declined to make the usual
order for costs. The decision was challenged by confirmed by the Court of Appeal.
Following the order Mr Larke was in fact entitled, as an executor, to recover his costs
from the estate itself. The court did not address this issue directly but it was strongly
implied that the residuary beneficiaries would have good grounds to bring a claim
against Mr Larke in turn, asking him to reimburse the estate for the loss that his
obstinacy had caused.
2.2
Implications of the decision for the modern draftsman
It is now clear that, whatever misgivings the draftsmen may have, when receiving a
request for information relating to a potential will challenge (now known as a "Larke v
Nugus letter") he should almost always cooperate. He should be aware that he is a
material witness and, if the matter reached court, he could be compelled to provide
evidence under the Supreme Courts Act 1981, so any delay will only increase costs
unnecessarily. This principle is clearly set out in the Law Society's guidance for will
draftsmen.
The draftsman should provide a full and detailed response to all the queries raised in
the letter. This will likely cover not only details of the will instructions and any
advice given to the testator but also any relevant details pertaining to the execution
of the will. The draftsman should provide this promptly. It is accepted that it may
take the draftsman some time to recover the file and collate the information but he
should ensure that he responds within a reasonable timeframe, no more than perhaps
two to three weeks, and certainly in sufficient time to minimise unnecessary costs if
his comments are likely to prevent a trial.
However, notwithstanding the above, it is accepted that there is no strict legal
requirement for the draftsman to respond to the letter. He should simply be aware
that, if he fails to do so, he is likely to be criticised and could potentially be required
to pay costs for proceedings which his information could have averted. The only
circumstances in which it may be reasonable for the draftsman to withhold
information is if he has reason to believe that the claim is entirely unmerited and
providing information will merely provide more fuel for a troublesome claimant. This
is an extremely difficult judgement for the draftsman to reach though and, if he is at
all uncertain, it is clear that the best course of practice is to respond fully to the
letter.
Tim Fullerlove
Partner
T: 01722 427 651
E: [email protected]
The contents of these notes are intended as a guide for readers. They can be no substitute for specific advice.
Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent
changes in the law.