Top 5 negligence issues in Will writing
As the world is grappling with one of the most serious viral diseases in the form of Covid-19, Will drafting practitioners have seen Will instructions increase by 70% and are having to think on their feet to come up with innovative ways to comply with the strict rules relating to the preparation and execution of Wills.
The fast pace of Will writing in these unchartered waters is likely to result in a rise in negligent Will cases over the coming months and years. In this article we round-up some of the common issues we see in negligent Will writing and we consider how the impact of Covid-19 is likely to amplify these issues due to time pressure and increased workload.
Those preparing Wills must ensure that they take instructions directly from the testator and that the instructions are adequate and accurately reflect the testator’s wishes.
Practitioners must ensure the testator has the necessary mental capacity to prepare and execute a Will and they are not subject to undue influence by anyone to make the Will.
Taking proper instructions from a testator is best achieved by having a face-to-face meeting and keeping any people who might accompany an elderly or vulnerable testator out of the meeting room.
Having said that, given the increasing severity of the spread of Covid-19 and the increasing strictness of government guidance, arranging to take instructions from a testator in person is extremely difficult if not impossible.
Practitioners are using telephone and video calls to take instructions and to try and assess the client’s capacity. Video conferences are the preferred option and the practitioner should try to speak to the client alone and, if possible, check that no one else is in the room by asking the testator to move their device to show a 360 degree view of room.
At the time of writing we understand that it is possible to arrange for testamentary capacity assessments to be carried out by psychiatrists via video link and companies such as Halcyon Doctors are offering that service.
Due to the urgency to make the Will it is likely that many practitioners will fall foul of these extra checks and there is likely to be an increase in Will challenges and professional negligence claims over the coming month as a result.
Delay in preparation
A practitioner might be liable to a disappointed beneficiary if they fail to prepare the testator’s Will within a reasonable time.
There is no set definition of what ‘a reasonable time’ is, but it is clear that the time from instructions to preparation must be short in the case of elderly or ill clients, and Covid-19 patients will fall into both these categories.
The Law Society advice in light of Covid-19 is that no solicitor can be forced to give legal advice. If a solicitor believes that following the government’s advice on good hand and general hygiene and social distancing is impractical due to the location of the prospective client then they are free to decline to accept Will instructions.
Notwithstanding this, the solicitor should act reasonably and assess the measures in place rather than adopt a blanket ban on accepting Will instructions. It is important to keep a clear and detailed record of the reasons for declining to act, including any distancing and hygiene restriction difficulties or personal circumstances such as self-isolation which apply.
Again, we envisage an increase in claims brought by disappointed beneficiaries where loved ones passed away from Covid-19 before the practitioner had the chance to send the final Will to the deceased and ensure proper execution.
Valid execution and witnessing
There are formalities that must be completed when executing a Will and, if they are not complied with, this would render a Will invalid.
According to Section 9 of the Wills Act 1837, a Will is valid if:
- It is in writing.
- It is signed by the testator, or by another person in the testator’s presence and at the testator’s direction.
- The testator intended to give effect to the Will by signing it.
- The testator signs the Will in the presence of two or more witnesses who are present at the same time.
- Each witness attests and signs the Will or acknowledges the testator’s signature in the testator’s presence (but not necessarily in the presence of the other witness).
Ordinarily a lot of Wills are signed in a solicitor’s office where the solicitor can ensure compliance with section 9 of the Wills Act.
Given the social distancing guidelines and requirement to stay at home it has become increasingly difficult for practitioners to ensure that section 9 is adhered to. Again this is likely to lead to an increase in negligence claims by disappointed beneficiaries where practitioners have not been clear enough with the testator on how to sign and witness their Will.
Joint tenants or tenants in common
Property can be held jointly as ‘joint tenants’ or individually as ‘tenants in common’. There is often confusion about these two different manners of property ownership.
- Joint tenants means the property is owned equally between the registered owners. There is an automatic right of survivorship, so in the event of one of the joint owners dying, their interest in the property passes automatically to the other joint owner(s). Crucially, the right of survivorship applies whether or not the owners have made a Will.
- Tenants in common means the property is owned by the registered owners in equal or unequal shares. There is no automatic right of survivorship and in the event of one of the owners dying their interest in the property will pass in accordance with their Will or according to the intestacy rules if they have not made a Will.
A practitioner must ensure that they take proper instructions in relation to the testator’s assets, including whether the assets are owned as joint tenants or as tenants in common. A testator may not remember how their assets are held and the practitioner has a duty to ascertain the ownership of the assets in order to be able to draft the Will in accordance with the wishes of the testator. Failure to sever a joint tenancy could result in a negligence claim being brought by a disappointed beneficiary who has lost out on receiving a share of a property that the testator intended them to receive.
Time constraints and the pressure to get Wills drafted and signed quickly due to Covid-19 are again likely to lead to an increase in claims due to these simple Land Registry checks not been carried out.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
When taking instructions for a Will, the practitioner will need to consider whether there are any individuals who might be eligible to bring a claim under the Inheritance (Provision for Family Dependants) Act 1975 (‘Inheritance Claim’) after the testator’s death.
The practitioner should highlight the potential for an Inheritance Claim to be brought post death and advise that the testator should consider making adequate provision for those individuals in the Will.
Of course, it will ultimately be for the testator to decide what provision to make in their Will but the practitioner has a duty to ensure that the testator understands that a disappointed beneficiary could bring an Inheritance Claim after the testator’s death if adequate provision has not been made for them.
If the practitioner fails to bring the testator’s attention to any potential Inheritance Claim, this could give rise to a negligence claim and the practitioner may be held liable for the costs of any subsequent inheritance proceedings.
If you are considering instructing a solicitor to prepare a Will for you our Wills and Probate team are able to assist with this and can be contacted here.