In the previous article from our Review of Processes series, we looked at file administration and identification, the latter being an important step to take before proceeding. Once you have obtained money laundering identification from the client and they have signed your terms of business, the next step is to book a meeting to obtain their instructions so that you can produce the documents accordingly.
In this instalment, we’ll take a look at some tips you can use when taking instructions from your clients.
Check Previous Wills
Before you proceed with taking the client’s instructions, it’s always useful to obtain a copy of any past Wills. You may wonder why this is necessary if a new Will is being produced, and it’s to see if there are any significant changes they want in their new Will so these can be discussed with the client. For example, if they made a Will 2 years prior naming both of their children as the beneficiaries of their residuary estate, and in their meeting with you they state that they now wish for only one of the children to receive 100% of their residuary estate, this would cause questions to arise. We need to ask what is the reason for the change, for example, has there been a family disagreement or are there concerns of undue influence?
Applying the Golden Rule
As you know, in order for a client to make a Will they must have the requisite capacity to do so and the principles are laid out in the case of Banks v Goodfellow which states that a testator must be able to demonstrate that:
- they understand the nature of his act (of making a will) and its effects;
- they understand the extent of the property in his estate; and
- they are able to comprehend and appreciate the claims to which he ought to give effect; and
- no disorder of his mind “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.
Where the client’s capacity is in question, the advice is that the Golden Rule should be applied where a medical professional can check capacity. Adopting this approach may not only protect you from criticism but also it may assist if the Will is ever challenged by a disgruntled family member.
Family Tree
Before instructions are taken it is a good idea to build up a family tree with the testator. Not only is this useful for relationships to include in the Will but it can form part of the capacity assessment too. It can also bring up any potential issues of claims under the Inheritance Act and it may lead to discovering further issues, such as if the testator wants to appoint A & B as executors of his Will but has told you that they do not see eye to eye, and you can then advise that someone else should be named. Another issue it could highlight is where the family tree shows the testator has 3 children but only 2 are benefiting from the estate in which case this will present an opportunity to ask about the third child and why they’re being excluded.
Businesses
If the testator has any businesses, find out how they are owned. If the business is a partnership, is there a partnership agreement in place?
If the testator owns a limited company, find out how the company is made up and review the articles of association and shareholders agreement. These can be found by searching Companies House. You may wonder why this is necessary, and it’s because the testator may want to gift their shares in “XYZ Limited” to their cousin but the articles of association may include pre-emption rights offering to the existing shareholders first, in which case a gift of shares in the Will would fail if this option is exercised by the shareholders.
Checking How a Property is Held
Where a property forms part of the assets, you should always conduct a land registry search and review the title register. The title register will show who holds the property, how it is held (i.e. joint tenants or tenants in common) and any charges or restrictions on the property.
The reason for this is to check that the testator does own the property. If it is gifted in the Will and it later transpires the property is owned by someone else, the gift of property will fail.
On occasion, clients may be of the belief that they own a property when in fact the title register shows someone else as the owner. Likewise, they may advise you that they own the home as tenants in common when the title register states it’s actually held as joint tenants. If a property trust was included in the Will and the tenancy was not severed, this would cause issues.
Checking this preliminary information during the instruction stage can prevent issues from developing later on. The cost of obtaining a title register is only £3 and this can be incorporated into your fees.
Gifts to Charity
On occasion, clients may want to gift some money or a share of their estate to a charity.
You need to ensure the correct charity and charity number are included in the Will else on death this could cause questions about which charity that was intended to benefit from the gift. The Will should also be clear as to what should happen if the gift to charity fails, and this can be done by including a fallback provision or cy-pres clause.
Where a gift to charity is being made, ensure your notes clearly state the reason for the gift to charity in case the Will is ever challenged by a disgruntled family member. A wealthy testator may decide to leave their entire estate to charity instead of family and it may be challenged on grounds that the testator lacked capacity. Have a letter of wishes alongside the Will to state the reasons for this in case the Will is ever challenged.
You may be familiar with the case of Ilott v Mitson where the testator decided to leave her money to 3 charities instead of her daughter. The Will was accompanied by a letter of wishes which explained why the testator had chosen to do this. The Will was challenged by her daughter and it was ruled by the Supreme Court in favour of the deceased.
