Satisfying your obligations
When meeting with a client to take instructions for a Will, there are some key considerations you should be making. This doesn’t matter whether you are taking instructions in person, by telephone or by other remote methods such as Skype.
First and foremost you must carry out an assessment of the client’s capacity to satisfy yourself that they have the requisite capacity to give you valid instructions. It is also important that no matter your method of instruction taking you are asking the right questions to gather all of the necessary facts to enable you to provide the best and most accurate advice.
When taking instructions for a Will you should try to conduct all, or at least part, of the meeting with the client alone, preferably in the absence of any potential beneficiaries. This is to avoid any later suggestion of undue influence and to satisfy yourself that no pressure is being exercised over the testator to influence them into making a Will they do not wish to make, or to benefit a certain individual. Obviously if you are meeting a client in person or are conducting an interview via Skype this will be easier to achieve. If you are taking instructions by telephone you should ask for details of any other person who is present in the room with the client and confirm their reasons for being there. You should record this information in your instruction form, and it is advisable that there is a section of the form that the client can sign to confirm the details of who was in the room at the time are accurate.
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 any changes from their previous Will. All common sense but important none the less. 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 thus assisting with your capacity assessment.
A recent study carried out by Vicky Ling on behalf of Advice Brighton and Hove (as reported by the Law Gazette) has highlighted the potential market for remote instruction taking via Skype and similar means. The study found that this method was particularly beneficial among the elderly and disabled clients, as well as clients who are unable to leave their home due to the restraints of arranging child care. It also allows you to work remotely with deaf clients who are able to sign their instructions with the assistance of an interpreter. Of course you should be aware that this method relies on the client having access to such software and being IT literate, so it may not be a viable option for everyone.
Taking instructions via telephone or Skype can be an efficient method as it allows you to take instructions from clients who are unable to travel to your office due to disability, distance or time constraints, and who you are unable to meet with for any reason.
No matter your instruction taking method, it is important that you have appropriate processes in place to confirm that the client is who they say they are, that they do not lack capacity and they are not subject to any undue influence.
You will also need to make sure you have robust terms of business to reflect that you are working remotely.