By Katie Hanson, Legal Services Director, Prestige Legal Services
Will writing is a fundamental aspect of estate planning, and our associates play a crucial role in guiding clients through this important process. Adhering to best practices not only ensures that Wills are legally sound and reflect clients’ wishes, but it also protects against future disputes and complications. In this article, we will explore essential best practices in Will writing, with a focus on understanding vulnerable clients, assessing capacity, and taking contemporaneous notes. We will also discuss how associates can speed up drafting times by providing comprehensive information at the outset.
Understanding Vulnerable Clients
Clients who are vulnerable may be at a higher risk of exploitation or may find it challenging to fully understand the Will-writing process. Vulnerability can arise from various factors, including age, illness, disability, mental health issues, or life circumstances. It is crucial to recognise these factors early in the process and take steps to ensure that clients are supported appropriately.
What to Look Out For:
– Signs of Vulnerability: Look for signs that a client may be struggling with understanding the process, communicating their wishes, or making decisions. Indicators of vulnerability can include confusion, forgetfulness, or signs of distress when discussing their estate.
– Potential Undue Influence: Be vigilant for signs that someone may be exerting undue influence on the client. This could manifest as a third party speaking on the client’s behalf, dictating their wishes, or being overly involved in the decision-making process.
– Capacity Issues: Clients with conditions such as dementia or learning disabilities may struggle with capacity. We’ll discuss this in more detail below, but it is important to identify any potential concerns from the outset.
For vulnerable clients, it may be necessary to adapt the approach, such as allowing more time for discussions, using simpler language, or involving a trusted third party (such as a family member or carer) with the client’s permission.
Assessing Capacity
Assessing a client’s mental capacity is a critical step in Will writing. A valid Will can only be made by someone who has the capacity to understand the nature of making a Will and its effects, the extent of their estate, and any potential claims on it.
Key Considerations in Assessing Capacity:
– The Legal Test for Capacity (Banks v Goodfellow): The law sets out a specific test for testamentary capacity, which originates from the case of Banks v Goodfellow. The client must understand:
- The nature of making a Will and its consequences.
- The extent of their property and assets.
- The claims that others might have on their estate.
- The decision should not be influenced by any mental disorder or delusion.
– Seeking Medical Evidence: In cases where there are doubts about capacity, it may be prudent to seek a medical opinion. Ben Slater from Nellie Supports spoke at one of our events and is a great contact for this. This is particularly relevant for clients with a history of dementia, mental illness, or neurological conditions. Obtaining a formal capacity assessment can help safeguard the validity of the Will and reduce the risk of future disputes.
– Documenting the Assessment: Whether or not a medical opinion is obtained, it is vital to document your assessment process carefully. Make a note of how you assessed the client’s understanding of the Will, the questions asked, and their responses.
The Importance of Taking Contemporaneous Notes
Contemporaneous notes are records taken at the time of the meeting or event, which provide an accurate and immediate account of the discussions that took place. In the context of Will writing, contemporaneous notes serve as crucial evidence if the validity of the Will is ever questioned.
What This Means in Practice:
– Detail is Key: Your notes should be detailed and cover all aspects of the meeting, including the client’s instructions, any concerns raised, questions asked, and your observations about the client’s capacity and behaviour. If a third party is present, document their role in the meeting.
– Record Any Changes to Instructions: If there are any changes to the client’s instructions, these should be clearly noted along with the reasons for the change. This is particularly important if the changes appear unusual or if they benefit a specific individual.
– Safeguard Against Challenges: In cases where a Will is contested, contemporaneous notes can serve as evidence that the client’s wishes were understood and documented, and that any concerns about capacity or undue influence were addressed appropriately.
Speeding Up the Drafting Process: The Importance of Comprehensive Case Submissions
One of the most effective ways to improve efficiency in Will drafting is by providing complete and comprehensive information when submitting a case. This ensures that the drafting team has all the necessary details from the outset, reducing the likelihood of delays caused by requests for further information.
Key Information to Provide:
– Full Details of the Client and Beneficiaries: Ensure that all personal details, including full names, addresses, and relationships to the testator, are provided. This avoids ambiguity and helps the drafter understand the family structure and potential complexities.
– Clear Instructions on Asset Distribution: Provide a detailed account of how the client wishes their estate to be divided, including any specific bequests. This should include instructions on any trusts or life interest arrangements.
– Information on Liabilities and Debts: Knowing the extent of liabilities helps in understanding how they will affect the estate and the distribution to beneficiaries.
– Notes on Capacity and Vulnerability Assessments: If you have conducted any capacity assessments or noted any signs of vulnerability, include this information in the case submission. This ensures the drafter is aware of any potential issues from the outset.
– Details of Any Previous Wills: If the client has made previous Wills, provide details about them. This can help in understanding any changes in instructions and the rationale behind those changes.
Best practices in Will writing are crucial to ensure that clients’ wishes are properly documented, legally sound, and free from future challenges. For our associates, understanding how to identify and support vulnerable clients, assess capacity, and take contemporaneous notes is essential. These steps not only protect clients but also help to safeguard your reputation and minimise the risk of disputes.
Moreover, by submitting comprehensive and detailed information from the outset, associates can speed up the drafting process and enhance the quality of service provided to clients. At Prestige Legal Services, we are committed to supporting our associates in delivering best-in-class estate planning advice, and we encourage you to incorporate these best practices into your daily work.
Should you need further guidance on any of the topics covered in this article, please do not hesitate to reach out to our team.