In the next of our back to basics articles, we thought it would be useful to really go back to the beginning and provide some pointers and advice when taking instructions from a client.
When meeting with a client to take their instructions for a Will, there are some key considerations you should be making. These apply whether you meet the client in person or take instructions remotely via telephone, or using video software such as Zoom or Skype.
Terms of Business & ID
Ensure you have robust terms of business and have the client sign a copy of your terms of business for you to keep for your file. The client should be given a copy of the terms of business they have signed for their information.
No matter how you take the instructions from the client, it is important that you have appropriate processes in place to confirm that the client is who they say they are so obtain the relevant ID from them. This can be either a passport or photocard driving licence and for proof of address either a bank statement, utility bill or council tax bill dated within the past 3 months. You should not proceed with instructions until you have obtained the client’s ID and a copy of the ID should be kept on file.
Before proceeding with taking any instructions from the client, you must first carry out an assessment of the client’s capacity to ensure they have the requisite capacity to give you valid instructions for their Will. Ensure you take clear notes of the questions asked and the responses given, and that your instruction form does give an overall summary of the client’s capacity in case the Will is ever challenged on this basis.
Take instructions from the client only
This may seem like an obvious point but we have come across instances in the past where a Will has been written for Mr Smith but the instructions were given by Mrs Smith. To clarify, the instructions must come from the testator only.
When taking instructions from the client, you should try to conduct all or most of the meeting with the client alone and with no-one else present in the room. This is to remove issues of possible undue influence and satisfy yourself that no pressure is being exercised over the testator to influence them into making a Will or benefiting a certain individual. You will of course still need to assess whether there could be concerns of undue influence depending on the answers given by the client and their mannerism given that undue influence normally happens behind closed doors.
If someone does insist on being present and you have concerns about them being there without good reason, you are well within your right to ask them to leave the room. On some occasions the client may want someone to be present and even though the other person does not say anything during the meeting itself, we would still advise at the end of the meeting that you ask said person to leave the room, then summarise the instructions with the client and just confirm they are happy with the instructions they have given.
Where you are taking instructions over the phone, you should ask who else is present in the room and their reasons for being there and make a note of this in the instruction form.
Another point to make is to take note of who booked the meeting, who is present during the meeting and who may be pushing for the will to be finalised as this can also raise concerns of undue influence.
When dealing with clients who are vulnerable in some way, it is important you make any reasonable adjustments that are necessary to allow them to access the same level of services that a non-vulnerable person can. This could be by providing material in plain English or larger print, or even spending longer with the client to explain things. Taking instructions via Zoom, Skype or even the telephone can be an effective method as it allows you to take instruction from clients who are unable to travel to the office or whose home you cannot visit.
Amendments to the Will
This may be another obvious point, but where a draft Will has been sent to the client and they would like to make amendments, the client must email or contact you about this themselves and not via someone else. We have come across scenarios where a beneficiary has emailed on dad’s behalf with an amendment to the Will which, no surprise, gives them a greater share of the estate. Where the client does not have an email address, follow this up with a call to the client to confirm the amendment and make a note.
Carry out a full fact find
Where a client is instructing you to write their Will, ensure you are asking the right questions to gather all of the necessary facts to enable you to provide the best and most accurate advice.
However you are taking your instructions, you should ask the client to provide you with an outline of their estate and their assets and how they are owned. This will allow you to provide specific advice that is relevant to their estate, for example advice in regards to inheritance tax, severing their tenancy or advice in relation to dealing with any business assets. It will also allow you to establish whether the client knows what it is they are gifting therefore assisting with your capacity assessment.
Review any previous Wills
You should establish whether the client has made any previous Wills and read the previous Will if possible. You should also discuss the client’s reasons for making any changes from their previous Will. Concerns should be raised where the client made a Will recently excluding their son but now they want to revise their Will gifting said son most of the estate. You should explore the reasons for this in detail with the client as this is a potential red flag.
You may come across instances where English is not the clients first language or they can only communicate via sign language for example, and in this case you will need to have an interpreter who can relay the instruction back to you.
Where an interpreter is required, family members should not interpret. The main reason for this is because there is no guarantee that the information given by the client to them is being subsequently relayed to you as the advisor correctly and accurately. When an interpreter is required, the services of one who is completely independent should be engaged.
Power of attorney
Having a power of attorney for the donor’s affairs (whether health and welfare or property and financial affairs) does not extend to having powers to write the donor’s Will. The testator must give the instructions for their own Will providing they have the requisite capacity to do so.
We cannot stress enough just how important it is to ensure detailed notes are taken during your meeting with the client along with any advice given.
It is a good idea to send a letter of advice to the client following the meeting to summarise what was discussed. You may have instances where the client has asked you to include something in the Will which has some risk attached to it and they have chosen not to follow the advice you have given, so notes are essentially there to protect you.
If you are in a situation where a client for example, wants to exclude their son or spouse from the Will and you have advised them of a risk of a claim under the 1975 Inheritance Act, it would be useful to have them sign something to confirm that they are aware of the risks having been advised by you and are still happy to proceed on this basis.
Not only should you keep meeting notes but any correspondence thereafter i.e. telephone attendance notes if a client has called and asked you to change a money gift to a beneficiary for example. You should keep a file for each client and ensure that this is kept up to date. This can be a physical or electronic file, and in either case make sure it is stored securely.
Despite how the instructions are taken, please ensure you keep detailed notes of the meeting as well as any other correspondence with the client. Client information should be kept for 6 years after their death.