Larke v Nugus: Will Your Covid Response Be Sufficient?

Contentious probate solicitor Stephanie Kerr of Brabners and barrister John Waiting of Exchange Chambers consider the common grounds on which Wills are challenged and when a claim might be made against a solicitor. The risks these issues pose are exacerbated by the current challenges we are facing during the COVID-19 pandemic.

The response to the pandemic has demonstrated the legal profession’s ability to adapt to challenging circumstances, having detached from its offices and set up in spare rooms, lofts and kitchen tables. However, solicitors in all specialisms need to consider how working from home could affect their ability to comply with their duties to their clients.

The Law Society has issued guidance on the execution of Wills during the pandemic, but there has been little focus on the other key issues which still need to be considered when drafting Wills.

Taking instructions

In relation to clients, steps need to be taken to ensure it is the person making the Will who is giving the instructions. Appropriate steps should be taken to check their identity.

Solicitors must take into account their client’s attributes, needs and circumstances and also give the information and advice in a way the client understands so they can make informed decisions.

The SRA Will drafting guidance dated 25 November 2019 identifies the following situations which need to be managed by solicitors:

  • making sure clients have testamentary capacity;
  • concerns about someone’s undue influence;
  • monitoring for frauds and scams (particularly online will writing services);
  • ensuring full information regarding the client’s assets and immediate family is obtained and retained;
  • record any reasons for excluding family members and ensure the implications of this are explained;
  • making sure Wills are drafted in a timely manner; and
  • ensuring clients return the signed Will within a reasonable time.

Capacity

The pandemic does not loosen the requirement that where a solicitor has concerns over their client’s capacity they must either refuse the instructions and make the position clear to the client, or take steps to satisfy themselves as to their client’s mental capacity promptly.

It is a matter of best practice (but not a requirement of validity) that a solicitor follows the golden rule, set out by Templeman J in Kenward v Adams [1975] C.L.Y. 3591:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it maybe to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.”

Those who are elderly or have suffered a serious illness but have capacity must be able to take advice and make a Will. Solicitors must have timely processes in place to allow a medical practitioner to assess whether the client has testamentary capacity.

Undue Influence

Solicitors should be satisfied that no-one else is present when taking instructions and that the wishes stated are those of the client. If another person is present, the solicitor needs to explain that it is preferable to take instructions in the absence of others, recording any advice given and the response.

Where a client is not proficient with technology, a person assisting them with the technology could be abusing that position to exercise undue influence over the client.

Where a person is being excluded from the Will, records must be kept of any reasons and the implications must be explained to the client. If the processes being used are not allowing this to happen, the processes need to be changed.

The usual precautions need to be taken to identify and avoid any conflict of interests when taking joint instructions.

Earlier Wills

A solicitor should obtain any earlier Will (or a copy) and discuss the reasons for any changes. How this is sent and received securely should be considered.

Knowledge and approval

If a Will is challenged the Court will consider whether a testator knew and approved the contents of their Will. The solicitor needs to make sure that technology is not a barrier to the client understanding the content and effect of their Will.

Conclusion

There is great pressure on solicitors drafting Wills during the pandemic. However, disappointed beneficiaries may seek to capitalise on emergency working practices which superficially overcame the limitations caused by the virus, but which fail to allow a solicitor to perform their duties properly.

The key question to ask when taking instructions is “will your Larke v Nugus response be sufficient?

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