Top Tips: for avoiding professional negligence claims when drafting a Will

Have a checklist
In order to try and avoid mistakes it’s a good idea to have a checklist with all the steps that need to be taken right through from taking instructions for the Will through to closing your file. It will be more difficult to miss things and easier to notice if you do.

Avoid delay
Delay can be detrimental when drafting Wills as it can result in a Will not being drafted or executed before a person passes away. A solicitor may be responsible for a disappointed beneficiary if they fails to ensure that a Will is drafted within a timely manner.
In order to avoid delay be conscious of when you receive instructions and how long it takes you to implement these instructions and always keep appointments.

Record, record, record
Wills often result in disputes regarding whether or not they reflect the Testators wishes and if the Testator had capacity to make the Will. Solicitors and Will writers can find often themselves caught up in these disputes. In order to protect yourself you need to ensure that you record all conversations with the Testator regarding:

  • the estate and their wishes,
  • your assessment of their capacity (if necessary) and
  • the advice given by you.

As well as completing a detailed attendance note you should confirm the client’s instructions and put your advice in writing prior to them signing the Will.

Consider your client
The steps that you will need to take to protect your position and your client’s wishes will very much depend upon the client that you are dealing with. It is helpful to complete an initial assessment of the client in order to consider what additional steps (if any) you will need to take.

Take instructions directly from the Testator
Taking instructions for a Will from anyone other than the Testator is very dangerous territory. It can ultimately result in the Will be challenged on several grounds and you being liable for the costs of any challenge. Always try and insist upon taking instructions from the Testator directly. If this is not possible then you will need to ensure that you meet with the Testator in order to confirm their wishes and always remember to record, record, record!

Use the Assessment of Mental Capacity Guidance
The Law Society and British Medical Association issued guidance that should be followed when considering a person’s mental capacity. This sets out the best practice for dealing with people who may lack capacity when making important decisions such as a Will. Following this best practice and recording it will make it more difficult for anyone to criticise your conduct in respect of preparing the Will and ultimately protect the Testators wishes.

The golden rule
If you are unsure as to the Testator’s mental capacity you should follow the golden rule which is to have a Will witnessed or approved by a medical practitioner who should examine the Testator and record his examination and findings. This rule should also be followed when drafting Wills for an aged testator or one that has been seriously ill.

Provide full instructions on how to sign the Will
Ideally you will always attend your client to sign the Will. Sometimes however this may not be possible if this is the case then you will need to ensure that you provide detailed instructions upon how the Will must be signed and witnessed. A regular problem with signing Wills at home is that Testators do not understand that their signature must be witnessed by two people at the same time. Whilst it is common knowledge that a beneficiary cannot witness the signature it is not so common knowledge that this cannot be a beneficiaries spouse or civil partner.

Consider if you need to take any further steps regarding execution
If there any irregularities regarding the execution of the Will such as people signing in the wrong place or any amendments to the Will, it is sensible to endorse the back of the Will explaining the problem and complete an attendance note dealing with the issue. You may also want to consider having a witness or person present at the execution give an affidavit dealing with the issue in order to try and avoid any potential future disputes.

Check the Will post execution
Whilst it can be tempting to file the Will and move on to next job it’s important that you check it over carefully in order to ensure that it meets with the client’s instructions and that it has been executed properly. A recent case dealt with a matter where a husband and wife had signed each other’s Wills. This matter went all the way to the Supreme Court who ordered that the Wills could be amended. In this case it was ordered that the solicitor’s insurers were to pay all of the costs of the proceedings which greatly outweighed the value of the estate.

Closing comments
If you have implemented your checklist then this can be included along with the above steps in order to ensure that if a dispute does arise you will be able to provide evidence of the Testator’s wishes and capacity. This will ultimately help to ensure that the Testator’s wishes were followed and also protect your own position in the process.

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