As solicitors specialising in contentious probate, a lot of the cases that we see are the result of a failure to engage in proper estate planning, often where there is no will, or a will has been prepared without expert advice. However, we also see plenty of examples where the problems have arisen even where advice has been sought. Of course, hindsight is a wonderful thing and with its benefit such difficulties could perhaps be avoided. Alternatively, we would suggest considering the following points when preparing a will:
1. Take adequate instructions.
Even when the testator may appear to only need a simple will it is imperative that for any new will comprehensive instructions are taken and a clear attendance note is prepared for the will file. If the will is challenged, then comments made by the client and included in the attendance note could provide clear evidence of their intentions.
You may be required to respond to a ‘Larke v Nugus’ request if a will is challenged for any reason following the testator’s death, which requires you to answer specific questions or provide a statement regarding your recollection of the preparation of the will. This can often be several years after your instruction and therefore proper and detailed notes in the will file can assist you in preparing your response.
2. Have a standardised checklist/questionnaire when preparing a Will
A checklist can help ensure that all salient points are covered when taking instructions from a testator. A questionnaire can include questions about the testator’s family, intended beneficiaries, estate assets and values etc. The questionnaire could be sent to the testator prior to any meeting to allow them time to collate any information required completed and to ensure that you have all the necessary information to discuss at the will instruction meeting.
3. Ensure that the testator has the requisite testamentary capacity
Will drafters should be particularly alive to whether the testator has the requisite testamentary capacity to execute a will, especially in elderly clients. The test of testamentary capacity in Banks v Goodfellow (1870), requires that the testator:
- Must appreciate the nature and consequences of making a will;
- Must understand the extent of his or her property;
- Should consider any moral claims to their estate; and
- Must not be affected by any disorder of mind or insane delusion.
We are seeing more and more challenges to the validity of wills on the grounds that the testator lacked testamentary capacity and it would help fend off any challenge if capacity was assessed at the time the will was prepared and executed. If the will drafter is confident that the testator has the requisite capacity then they should include their assessment of capacity in the contemporaneous attendance note, with reference to the Banks v Goodfellow test.
Therefore, if there are concerns as to the testator’s capacity, although it may be a difficult conversation to have with the testator, make enquiries about any illnesses the testator may have which could affect capacity, and advise them that by obtaining a capacity assessment from a medical professional confirming they retain capacity it will ensure that their wishes are adhered to after their death. This is the so called “Golden Rule” in terms of best practice for will drafters.
4. Protect the testator from undue influence
A challenge to the validity of the will can also be made on the ground that the testator was unduly influenced into executing a new will. If there are dramatic departures from previous wills or, for example, the testator is excluding one of their children to the benefit of another, then make sure that you make a comprehensive note of their reasoning and explain to them the implications of this decision. You should also meet with the testator alone in order to ensure that they are not being influenced and consider whether anything that they say might be the result of coaching. Taking these steps can assist in protecting against claims of undue influence.
5. Ensure the Will is accurately drafted
Double check your drafting and ensure that the testator understands the outcome of all the terms of his will. If there are any errors, omissions or ambiguity, then an application for Rectification under Section 20 of the Administration of Justice Act 1982 may need to be made after the testator dies. When making such applications it is helpful to know exactly what the testator intended, which again links back to the importance of taking adequate instructions and ensuring the instructions are noted down and kept with the will file.
6. Ensure that the testator understands the content and consequences of their Will
After the will is drafted make sure that you provide sufficient advice to ensure that the testator understands each clause in his Will and its effect. If there are concerns that the testator does not understand their will then a challenge on the ground of lack of knowledge and approval could be made following their death.
7. Provide clear signing instructions
If the testator is not attending your offices to sign, or it is not being video-witnessed under your supervision, then you must ensure that you provide clear instructions for the signing of the Will to ensure that it is executed in accordance with s.9 Wills Act 1837, which requires that a Will is:
- it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either (i) attests and signs the will or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
It should be noted that, even if you follow our suggestions, a will is not guaranteed to stand up in court simply because a solicitor was involved in its preparation. However, there are steps you can take to mitigate the likelihood or success of a challenge to a will.
Contact our Contentious Probate Team
If you are concerned about the preparation of a will or a will you prepared is being challenged, please contact Tiggy Hawkesworth or Rachel Waller on 020 7631 4141 or email contentiousprobate@bishopandsewell.co.uk
The above is accurate as at 11 May 2022. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
