You meet with a client following an appointment being made by his daughter, who happily drives her elderly father to your office. The client, with the assistance of the daughter, gives you instructions to prepare a new will which provides that his son will no longer inherit what he would have in his previous will. The daughter instead inherits his share. Does this set alarm bells ringing? What do you do?
Whilst it is, of course, possible to challenge the validity of a will on the ground of undue influence, any claimant will have a particularly difficult job in doing so. Very few cases succeed. Even so, this may provide little comfort to you when being faced with drawing up a will in the circumstances set out above - especially when you would be a crucial witness in court proceedings if the will was ever to be challenged.
As a will-drafter, you need to ensure that the testator acted as a free agent (as set out in Winifred Edwards Dec'd), but this may be easier said than done.
When meeting a client, have in mind who made the appointment, who brought the client to the appointment, and the physical and mental strength of your client. During the meeting ensure you:
- See the client alone and in the absence of any potential beneficiaries.
- Ask non-leading questions.
- Ask about family, dependants, expectants etc; you are undertaking a fact-finding exercise.
- If any previous will provisions are being changed, ask why. Is there a good explanation?
- Record and assess the answers to each question.
- Consider whether a doctor's certificate of capacity is required. Do you need to seek an expert opinion?
In assessing the above, bear in mind that just because a person (who may or may not be a beneficiary under the terms of the proposed will) may have a strong influence on the client this does not mean that it amounts to "undue" influence. Influence may be well-intentioned and sensible. People who make wills can be lawfully influenced by a whole range of factors when deciding who they wish to name as beneficiaries under their will.
If you believe that there is the possibility of undue influence, what do you? Do you have to draft the will?
It is a matter of professional judgment for you to decide whether you proceed or continue to act on the client's behalf. If you have reasonable grounds for believing that the client's instructions are affected by undue influence you can refuse to act further.
The Solicitor's Code of Conduct sets out the duties on a solicitor will drafter in relation to assessing the possibility of undue influence in the indicative behaviours in Chapter One, in particular, IB 1.6 and 1.28.
You may decide that on balance it is best to proceed as instructed, but if so you should ensure that you have a detailed file note of your meeting(s). Just being suspicious of undue influence does not mean that there has been undue influence or, that the Court would rule that the will was invalid on this ground, if ultimately challenged. It is not for you to decide a prospective undue influence claim in advance.
The key for the will drafter is to have a full record of the instruction. This should minimise the chance of having to appear in the witness box in a will dispute on an undue influence claim in years to come.