Challenges to wills are becoming more common. This increases the danger to will writers of contentious probate actions being brought against them by the estate or disappointed beneficiaries for loss. Some useful tips to help avoid challenges are set out below.
- Always check that the person making the will has capacity. It is of the utmost importance that the testator has capacity to make a will. If there is any doubt as to capacity, the will writer should get a medical practitioner to witness the will or write a letter confirming the testator’s capacity to make a will. A medical practitioner who is an expert in capacity issues, such as a psychiatrist, would be a suitable choice. It is also important that any previous testamentary dispositions and the reasons for any changes to them are discussed. Furthermore, it is important that instructions are taken away from beneficiaries or others who may influence the testator.
- Always check instructions. Instructions should always be taken from the testator in person wherever possible. Caution should be exercised when taking instructions from third parties or in writing. This will help avoid a challenge that the will should be declared invalid as the testator did not know or understand the terms of his will. In Sifri -v- Clough and Willis  WTLR 1453, Mr Justice Roger Kaye said, “In my judgment, if a solicitor does fail to take instructions from the proposed testator, does take them from a third party and does not check to see he has understood his instructions properly and, moreover, as alleged in the case, does not keep a proper note of his instructions, it is reasonably foreseeable that a challenge to whatever wills are executed as a result will in turn ensue…”
- Always check the will reflects the client’s intentions. If the will does not reflect the client’s intentions, the will writer may be liable to the disappointed beneficiaries who should have been included in the will. A prevalent example of an ineffective will is one that purportedly deals with the Deceased’s beneficial interest in co-owned property without severance.
- Always check the will has been executed correctly. This is another area which can give rise to negligence actions against will writers. A will writer potentially owes duties to both the testator and beneficiaries to ensure and check that the proper formalities for the execution of a will have been fulfilled. In Hulmblestone -v- Martin Tolhurst Partnership  EWHC 151 (Ch), Mr Justice Mann stated the solicitor who prepared the will was under a duty to check the execution of the will whether or not they had been asked to do so.
- Don’t delay in preparing the will. Delay in preparing wills can give rise to negligence actions. The length of delay which may lead to a finding of negligence will depend on the circumstances. For example, if there is a substantial risk of the testator’s imminent death, “…anything other than a handwritten rough codicil prepared on the spot for signature may be negligent. It is a question of the solicitor’s judgement based on his assessment of the client’s age and health” (X -v- Woollcombe Yonge  WTLR 301).
- Keep detailed attendance notes. It is vitally important to produce and keep detailed attendance notes of instructions. The courts have been critical where attendance notes have not been produced and in Key -v- Key and others  EWHC 408 (Ch) Mr Justice Brigs criticised the solicitor (Mr Cadge) and stated, “The only notes that Mr Cadge made of this interview consisted of a few lines of manuscript, hastily scribbled on the back of a letter about a wholly unrelated matter for a different client, which was, extraordinarily, produced by way of disclosure only halfway through Mr Cadge’s cross-examination”.
Contentious probate issues can often crop up, so if you have any contentious probate queries, please do not hesitate to contact Paul Davis of BHW Solicitors on 0116 281 6231 or email: firstname.lastname@example.org.