Solicitors' duties in will preparation

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Jack is an older man who wishes to leave the majority of his estate to a local charity. He appears to have notable memory lapses about his property holdings, raising concerns about his capacity. In addition, his longtime caregiver remains present during all discussions, frequently interjecting to clarify Jack’s statements. Jack insists that he wants the caregiver to be a major beneficiary, a significant change from a previous draft favoring his siblings. Despite some reservations, you are prepared to proceed with drafting the will but must ensure compliance with your professional duties.


Which of the following steps, if taken by the solicitor, best aligns with ensuring the will’s validity in these circumstances?

Introduction

The preparation of wills requires meticulous attention to legal standards to ensure their validity. Solicitors play a significant role in guiding this process, ensuring that wills comply with statutory formalities and reflect the true intentions of the testator. Key principles governing the validity of wills include compliance with the Wills Act 1837, testamentary capacity as established in case law, and freedom from undue influence. Proficiency in these principles is necessary for legal practitioners involved in estate planning and is particularly relevant for the SQE1 FLK2 exam.

Legal Requirements for Valid Wills

Understanding the legal framework governing the validity of wills is essential. The Wills Act 1837 sets out specific formalities that must be strictly followed for a will to be deemed valid.

Formalities Under the Wills Act 1837

Section 9 of the Wills Act 1837 mandates that a valid will must:

  1. Be in Writing: The will must be documented in writing, clearly expressing the testator's intentions.

  2. Be Signed by the Testator: The testator must sign the will, or acknowledge a signature made by someone else in their presence and by their direction.

  3. Be Witnessed: The signature must be made or acknowledged in the presence of two or more witnesses present at the same time, who must also sign the will in the presence of the testator.

Failure to meet any of these formalities can render a will invalid. For solicitors, ensuring these requirements are meticulously followed is non-negotiable. It's akin to assembling a precise mechanism; if one component is missing or improperly fitted, the entire apparatus fails to function.

Testamentary Capacity

Testamentary capacity refers to the legal and mental ability of a person to make or alter a valid will. The seminal case of Banks v Goodfellow (1870) LR 5 QB 549 established the criteria for assessing testamentary capacity, which requires that the testator:

  1. Understands the nature and effect of making a will.

  2. Knows the extent of their property.

  3. Comprehends and appreciates the claims to which they ought to give effect.

  4. Is not affected by any disorder of the mind that influences their decisions in disposing of their property.

Solicitors must assess the testator's capacity, especially when there is any doubt about their mental state. This may involve obtaining medical opinions or thoroughly documenting the testator's understanding during consultations.

Knowledge and Approval

Beyond capacity, the testator must have knowledge and approval of the contents of the will. This means the testator must understand and agree to the terms set out in the document. Situations involving illiterate or visually impaired clients require extra care. In Fulton v Andrew (1875) LR 7 HL 448, the court emphasized the need for clear evidence that the testator knew and approved the contents of the will when suspicious circumstances exist.

Freedom from Undue Influence

A will should reflect the free and voluntary intentions of the testator. Undue influence occurs when pressure or coercion overcomes the testator's will, leading them to make dispositions they would not have otherwise made.

Establishing Undue Influence

To prove undue influence in probate, there must be evidence of actual coercion. Factors considered by the courts include:

  • The relationship between the testator and beneficiaries.

  • The testator's vulnerability due to age or illness.

  • Significant changes from prior wills.

An illustrative example is when an elderly individual, reliant on a caregiver, alters their will to favor that caregiver significantly. Solicitors must be vigilant for signs of undue influence and take steps to ensure the testator's decisions are made independently.

Solicitors' Duties in Will Preparation

Solicitors hold a major responsibility in the preparation of valid wills. Their duties involve taking instructions, drafting the will, supervising execution, and maintaining professional standards of care.

Taking Instructions

When receiving instructions, solicitors should:

  1. Confirm the Testator's Identity: Verify the client's identity to prevent fraud.

  2. Assess Testamentary Capacity: Ensure the client meets the capacity requirements, seeking medical input if necessary.

  3. Receive Instructions Directly: Obtain instructions from the testator without undue involvement from beneficiaries.

  4. Understand the Testator’s Wishes: Elicit comprehensive details about assets and intended beneficiaries.

  5. Advise on Legal and Tax Implications: Provide clear advice on how the will's provisions may affect potential inheritance tax liabilities and other legal considerations.

Drafting the Will

In drafting, solicitors must ensure the will:

  • Accurately reflects the testator's intentions.

  • Includes all necessary dispositions, appointments of executors, and guardians if applicable.

  • Considers contingencies, such as beneficiaries predeceasing the testator.

  • Is clear and free from ambiguity to prevent disputes.

Execution of the Will

Supervising the execution process is essential. Solicitors should:

  • Arrange for the proper witnessing of the will, ensuring witnesses meet the legal requirements.

  • Explain the contents of the will to the testator, confirming their understanding and approval.

  • Keep detailed records of the execution process, noting dates, locations, and those present.

Duty of Care

Solicitors owe a duty of care to their clients, which includes:

  • Competence and Diligence: Providing services with the necessary skill and attention.

  • Avoiding Conflicts of Interest: Ensuring impartiality and acting solely in the client's best interests.

  • Confidentiality: Safeguarding the client's personal and financial information.

Negligence in will preparation can lead to professional liability. Cases like White v Jones [1995] 2 AC 207 highlight that solicitors may owe a duty of care to intended beneficiaries, emphasizing the importance of accuracy and promptness.

Common Challenges and Best Practices

Testamentary Capacity Issues

When clients exhibit signs of mental impairment or confusion, solicitors should:

  • Obtain a medical assessment to confirm capacity.

  • Document all interactions carefully.

  • Consider using a contemporaneous witness statement to corroborate the testator's capacity.

Avoiding Undue Influence

To mitigate risks of undue influence:

  • Speak with the testator alone when taking instructions.

  • Be alert to situations where a beneficiary attempts to direct the process.

  • Keep thorough records of the testator's decisions and the circumstances under which instructions were given.

Preventing Will Disputes

Clear and precise drafting reduces the likelihood of disputes. Solicitors should:

  • Use unambiguous language.

  • Anticipate potential challenges and address them proactively.

  • Advise the testator on the implications of excluding potential beneficiaries, such as dependants who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Emerging Legal Trends in Will Preparation

Digital Wills and Electronic Signatures

The rise of digital technology has introduced new methods for creating and storing wills. While the law traditionally requires paper documents and physical signatures, there have been movements toward accepting electronic wills in certain jurisdictions. Solicitors must stay informed about legislative changes and ensure that wills executed electronically meet all legal requirements.

International Considerations

In an increasingly globalized world, clients may have assets in multiple countries. Solicitors should be knowledgeable about:

  • Conflict of Laws: Understanding which laws apply to assets in different jurisdictions.

  • Foreign Property: Advising on the need for separate wills in other countries to cover foreign assets, ensuring that multiple wills do not inadvertently revoke each other.

Digital Assets

Modern estates often include digital assets such as cryptocurrencies, online accounts, and digital media. Solicitors should:

  • Encourage clients to consider digital assets in their wills.

  • Advise on providing access information to executors in a secure manner.

  • Keep abreast of developing legal frameworks governing digital assets.

Conclusion

A comprehensive understanding of the legal requirements for valid wills and the duties of solicitors in their preparation is fundamental. The strict adherence to statutory formalities under the Wills Act 1837, ensuring testamentary capacity per established legal criteria, and vigilance against undue influence are basic aspects. Solicitors must meticulously attend to these requirements, applying their professional judgment and maintaining high standards of care to uphold the integrity of the will-making process. The interaction of these principles highlights the important role solicitors play in securing the testator's intentions and addressing the complexities involved in estate planning.

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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal