Operational Risk Management during the Will writing process

01/03/18

In this webinar and article we look at claims and complaints, the Will writing process, thoughts on probate and the state administration, departmental controls and WIQS.

About the presenter: Tim Prior, is a director of PNCR Legal and a Quality Assurance Risk Management Consultant. I've been a solicitor since 1986 and am a Certified Fellow of the Institute of Risk Management. Since the late 1980s, he has specialised in Professional Indemnity work and is a regulatory inspector for the Council of Licensed Conveyancers, is contributed to Frances Silverman’s Conveyancing Handbook and wrote the Lexcel risk management toolkit.

Conveyancing is well known as the area that generates the largest number of negligence claims, and tends to hog the limelight as a result, but the risks when writing a will should not be overlooked.

 

According to SRA figures, work done in this area, if you include trust and probate work, is responsible for about 10% of negligence claims by number and value. These figures have remained pretty constant over the years.

 

The Legal Ombudsman regards the complaints it receives in this area, around 13% of all complaints, to be amongst the most complicated it receives. This may surprise you, particularly when anything up to 60% of the population don’t make a will but there you go. As an aside, if you have the necessary expertise, this represents a significant marketing and cross selling opportunity when conducting other legal work for clients.

 

Although solicitors often see themselves as better able to deliver a good service for clients in this area than unregulated will writers, as you would hope, research conducted by IFF Research in 2015 showed that wills prepared by solicitors were poorly drafted in 9 out of 41 cases.

These were genuine wills. That’s almost one in four. The drafting was seen as defective by a panel of experts because clients’ instructions were not met (through omission) or because of technical failings. These included, inter alia, the inclusion of conflicting or illegal provisions, inconsistent language and a lack of precision resulting in ambiguity. Remember the old adage that a precedent makes a good servant but a bad master.

Why do clients complain?

Claims and complaints tend to result from delay and excessive costs. One firm that provided an estimate of £2,500 to £3,000 to prepare a Will ended up charging £21,000. Unsurprisingly, that ended up with the Legal Ombudsman.

Other causes include testamentary capacity, with compliance with the golden rule from the 1870 case of Banks v Goodfellow still relevant, will drafting (as mentioned a few moments ago) and will storage. Claims can also arise from poor discipline in managing key dates. This is relevant in relation to deeds of variation (which must be completed within two years of death) and Inheritance Act claims under the Inheritance Provision for Family and Dependants Act 1975.

Will writing is often an area where corners are cut when it comes to client care, perhaps because the matter is seen as being so discrete that formalising the retainer is seen as serving no practical purpose or result. In some ways, your client care procedures should be even more stringent than in other areas because of the often-lengthy time that will elapse (in most cases) between the execution of the will and its coming into effect.

Remember that a Will speaks from death. This means that any complaint or any negligence may only come to light following the testator’s death. Accordingly, it is very important that the file is well documented. After all, neither the client who gave instructions for the will nor, in many cases, the lawyer who drafted it will still be around to answer questions.

 

Don’t be tempted to charge a cut-price fee with a view to delivering a cut-price service. Research suggests that price is not the most important factor when a testator decides that the time is right to give instructions for the preparation of a will. Client and matter vetting is just as important for will writing as for any other type of work. Indeed, when issues such as vulnerability and undue influence may need more than passing consideration, they are even more important. Your independence is also important, particularly if you will be recommending that your client appoints you or your firm as executor.

 

Consumer law considerations

Apart from clarity in your retainer, remember that consumer law may be particularly relevant. I am thinking here of the cancellation provisions in the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013. If you visit clients at home or in hospital, ensure that your client care communications deal with the right to cancel. For more detail, please look for the webinar which deals with these regulations.

 

SRA guidance issued by its ethics team reminds firms to focus on three principles: act in the best interests of each client, provide a proper standard of service and maintain public trust. You should have relevant procedures in place to ensure that testamentary capacity is properly considered, with a medical opinion sought where appropriate, and that risks of undue influence and fraud are properly considered. It doesn’t matter whether instructions are taken face to face or whether the will is drafted from a pro forma questionnaire completed remotely.

 

File management considerations

Following on from your client care obligations, your file management must be spot on. It is always dangerous to generalise but, in my experience, will files are often poorly documented. It is important to keep detailed file notes which address matters such as vulnerability and signs of undue influence as well as the extent of the testator’s estate and his (or her) wishes.

 

When acting for clients with complicated family backgrounds, which is becoming ever more common, ensure that you understand all the relationships. Where beneficiaries that might be expected to rank equally are treated unequally, ensure that appropriate advice is given about the risk of the will being challenged.

 

In relation to file notes, it is also important to document the circumstances in which the will is executed.  It is important that, when taking instructions, such matters are fully documented and that you factor this in to the price that you quote for the preparation of Wills.

 

Historically a lot of firms undercharged on the preparation of Wills on the basis that it would be a loss leader – that is, that the firm would benefit from handling the administration of the estate in due course.

 

Although it’s to be hoped that you will be instructed in due course, it’s a good idea to make sure that your time and effort in preparing the will is properly remunerated. As I mentioned earlier, research undertaken by the Legal Consumer Services Panel shows that, in the vast majority of cases, price is not the determining factor when clients want to make a Will. The survey is published on the Panel’s website.

 

I’ve already mentioned that a will only speaks from death. This means that the limitation period for any claim only starts running from death therefore it is important that you keep your will instruction file until probate has been granted. It should be archived somewhere safe, away from damp or flood risk, away from rodent infestations so that its information will be available, if needed, many years in the future.

 

Of course, the original will needs to be stored in a suitable environment which should be fire proof. wills should be indexed, with a procedure for their logging and removal, so that you have an accurate record of all wills held by you. One point that is worth considering is the registration of a new will with an organisation such as Certainty, which is endorsed by the Law Society and many professional indemnity insurers, amongst others. Its web address is nationalwillregister.co.uk. I would have been very grateful for its existence when a distant cousin passed away some years ago. The firm that had prepared the will had ceased and the firm that had supposedly taken over its will bank denied all knowledge. The Court of Protection had become involved before she died but they had been unable to find the will. After a lot of legwork, I did find the original will, but it was a mixed blessing as I then discovered that I had been appointed sole executor.

 

That covers everything I wanted to say on wills, in the webinar above though I also spend a few minutes on the administration of estates if you’re interested in learning more.

 

This webinar forms one of a series of webinars available on our Quality Assurance and Risk Management portal for client.  Topics range from operational risk management to matter opening procedures and anti-money laundering. To learn more visit our solicitors webpage.

 

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