Practical Issues when Taking Instructions and at Execution

AuthorLesley King/Peter Gausden
21 Practical Issues when
Taking Instructions and at Execution

This chapter is in the nature of a checklist of matters mainly covered already in previous chapters. It deals in turn with:

(a) preliminary matters;

(b) terms of the will;

(c) executing wills.

21.1 Preliminary matters

21.1.1 Time frame

The speed with which a will should be prepared varies according to circumstances. In White v Jones [1995] 3 FCR 51, a testator gave instructions for a will in mid-July and died on 14 September. The firm instructed had not prepared the will and was held liable in negligence to the disappointed beneficiaries.

In X (A Child) v Woollcombe-Yonge [2001] WTLR 301, a solicitor was alleged to have been negligent on the basis that the testatrix, whom he knew to be suffering from terminal cancer, died before he had prepared the will. It would have been ready for execution 8 days after taking instructions. Neuberger J held that, on the facts, the amount of time taken was not unreasonable. It was significant that the testatrix was not expected to die in the near future and that she had suggested contacting the solicitor early in the following week to give him new contact details. Neuberger J went on to say:

Where there is a plain and substantial risk of the client’s imminent death, anything other than a handwritten rough codicil prepared on the spot for signature may be negligent. It is a question of the solicitor’s judgment based on his assessment of the client’s age and state of health.

An adviser who is preparing a will for a client should agree a time frame giving the client an opportunity to explain any time constraints such as

234 Wills: A Practical Guide

approaching holidays or medical treatments. Provided the agreement is complied with, the adviser should be protected from liability. It goes without saying that advisers who break appointments for their own convenience will be exposed to a risk of negligence claims if the client dies before the will is prepared (see Hooper v Fynemores (A Firm) [2001] WTLR 1019).

21.1.2 Emergencies

As explained above, there may be occasions where a will is required urgently.

Professional advisers who are asked to prepare a will in a very short period need to consider whether they feel they can do a satisfactory job in the time allowed.

Obviously, complex tax planning is not something to be undertaken in such cases. The focus will be the dispositive provisions that the testator wants to make.

Remember though that what may be intended as a short-term will may, in fact, be the only will that the client ever makes. It is, therefore, important to make provision for survivorship periods and substitutional gifts and to describe property in such a way that the risk of ademption is minimised.

Where the major concern is to prevent the application of the intestacy rules and the testator is not certain what provisions to include, the most satisfactory solution may be to leave everything to a discretionary trust. The testator can leave a letter of wishes to guide the trustees. If the trustees appoint assets out of the trust within 2 years of death, the appointments will be read back into the will under section 144 of the IHTA 1984 (see para 17.2.1).

21.1.3 Cost

What is the fee for drafting the will? Advisers should be careful to leave no ambiguities. Does the fee extend to advice on related topics such as tax-efficient wills and the possibility of a challenge to the will after death under the I(PFD)A 1975? Does it cover overseeing execution of the will? Does it cover storage of the will?

21.1.4 Appointment of executors and trustees

There is no need to appoint a professional executor but there are circumstances, such as a divided family or a complicated estate, where

having an expert is extremely helpful. An expert will charge and the basis of charging should be made clear to the client.

If a friend or family member is appointed, there may well be professional charges in any event if problems arise which are beyond the capability of the lay executor (see, further, Chapter 11).

On 6 May 2014, the SRA issued ethics guidance called, Drafting and preparation of wills (updated 11 July 2014), which dealt with the topic of appointment of the person preparing the will or the firm as executors. While stating that there was nothing inherently improper in such an appointment, it went on to set out the matters that those regulated by the SRA should consider and the steps that the will drafter should take as follows:

 You must not exploit your client’s lack of knowledge for your own advantage by leading the client to believe that appointing a solicitor is essential or indeed the norm.

 You have a duty to act in your client’s best interests. It would not therefore be proper to encourage the client to appoint you or your firm unless it is clearly in the client’s best interests to do so. Whilst it may be beneficial to appoint a solicitor to act as an executor in certain circumstances (e.g. where the client’s affairs are complex, or there are potential disputes in the family or all the beneficiaries are minors) there may be no advantage where, for example, the estate is small or straightforward. A professional executor is likely to be more expensive than a lay one and the client should be advised accordingly. Appointment of you or your firm should not be presented to clients as the default position either in on line or face to face services.

 Before drafting a will which appoints you or your firm as executor(s), you should be satisfied that the client has made the decision on a fully informed basis. You should therefore:

 explain the options available to the client.

 ensure the client understands that the executor(s) do not have to be professionals; that they may be a family member or a beneficiary under the will; and that lay executors can choose to instruct a solicitor to act for them if this proves necessary and will be indemnified out of the estate for the solicitors’ fees.

 document the advice given concerning appointment of executors and the client’s decision on the file.

On 24 July 2018, the Law Society published a Practice Note, Appointment of a professional executor, which deals with the issues involved.

The Practice Note may be viewed at:

236 Wills: A Practical Guide

21.1.5 Is there any reason to doubt the testator’s capacity or suspect undue influence?

If the testator is elderly or ill, the golden rule suggests obtaining a medical opinion as to capacity to make a will (see para 3.5.2). It is increasingly difficult to find a general practitioner (GP) who is willing to do this. Where a GP agrees to provide a report, the will drafter must provide a clear written explanation of the test of testamentary capacity. The test is set out in Banks v...

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