These guidelines are not intended as a practice note for the preparation and execution of wills in general, but are intended to assist solicitors when acting for the elderly and often vulnerable client. More detailed and general guidelines regarding the preparation of wills can be found in the Law Society publication Wills, Probate and Estates.

Solicitors have a duty of care towards their clients, and this duty is heightened when acting for a vulnerable and elderly client who may find him/herself in circumstances of undue influence, or abuse. In addition, a solicitor must often assist the elderly client to understand the many issues involved, to communicate his/her wishes, and to give full and competent instructions.

Points for consideration
1. The client. It is important to ensure that instructions are taken from the intending testator, as it is the testator and only the testator who is the client. Interested family members may be keen to inform or interpret the wishes of elderly relatives for the solicitor preparing the will. Family or friends may feel they ‘know what’s best’. While the wishes of the testator will often coincide with the wishes of those who wish to assist in the preparation of a will, in many circumstances this will not be the case.

It is important that the testator is seen alone, without the benefit of third-party assistance, in either communicating or formulating his wishes.

Where an elderly client is introduced to a solicitor by a third party for the purpose of making a will, best practice requires that the solicitor ensures that a full and thorough knowledge of the testator’s circumstances is acquired before proceeding. Consideration should be given to the possibility that the elderly person may have his/her own solicitor but may have been diverted to another solicitor in order to bypass advice already received. Such advice, while it would have been given in the best interests of the testator, may not be deemed appropriate by family or friends. Where an elderly client is being referred in such circumstances, full enquiries should be made and a solicitor should be slow to proceed.

Where a solicitor is asked to attend a testator in a hospital or nursing home, it is important to ensure that such attendance is, in fact, at the behest of the client and not at the instigation of a third party.

2. Undue influence. When acting for an elderly client, a solicitor must be alert to the possibility of undue influence and, where there are grounds for concern, take all possible steps to ensure that the client is interviewed on his/her own. Extra care should be taken in situations where the presumption of undue influence will be particularly relevant, such as where the testator, due to age, frailty, or illness, relies upon relatives or carers for day-to-day care and assistance or for transport to and from shops, church services, social functions or medical appointments, and so on.

If instructions are received by letter, or otherwise in writing, a solicitor must consider carefully whether it is prudent to act on such instructions without the benefit of an initial interview with the elderly client. It is essential that a solicitor makes personal contact to ensure that the instructions received are those of the client, and, if concerned, arranges to interview the testator to obviate the possibility of fraud, assess the testator’s capacity, and ensure that comprehensive instructions are freely obtained.

Where instructions are furnished by letter, or otherwise in writing, from someone other than the testator, a solicitor is not in a position to proceed without first making contact with the testator to ascertain if they wish to be advised and to give instructions in the matter.

3. Capacity. The formalities for a valid will are set out in section 77 of the Succession Act 1965, which includes a requirement that the person “is of sound disposing mind”.

When taking instructions for the making of a will, it is therefore necessary to determine whether or not the client has testamentary capacity. Solicitors should be aware that testamentary capacity and mental capacity are not one and the same.¹ A person may have capacity for some legal purposes but at the same time lack capacity for others. Testamentary capacity is a legal test and requires a high level of capacity. Testamentary capacity, or broadly the test of ‘sound disposing mind’, is set out in Banks v Goodfellow ². The testator must understand:
a) The nature of the act and its effects,
b) The extent of the property of which he is disposing, and
c) Be able to comprehend and appreciate the claims to which he ought to give effect.

Assessment of testamentary capacity can be a difficult matter. Eccentricity or capriciousness does not necessarily indicate a lack of testamentary capacity. Further, testamentary capacity is not an exact science. A client who is unwell may have lucid intervals and sufficient testamentary capacity at the time of instructions, but later become incapable when it comes to reviewing his/her will for execution.³

Some useful pointers in assessing capacity are⁴:

• Persons assessing capacity should take care to fully understand the nature and effect of the transaction and have all the relevant documentation and necessary background information, including details of family members,
• Obtain corroborative information where necessary, including a diagnostic assessment of the client (that is, medical evidence),
• Treat any medical evidence obtained as supplemental to, and not a substitute for, the legal tests for capacity,
• Be fully aware of the legal test for assessing the capacity required in the particular context,
• Ensure that the nature and effect of the transaction is explained to the client in broad terms and simple language,
• After a reasonable time frame, establish whether the client can paraphrase in broad terms the explanation given earlier,
• Be aware of the danger in asking questions that give rise to the answer ‘yes’ or ‘no’,
• Avoid being misled by a client’s preserved social skills into believing that they have the necessary capacity to make a particular decision or complete a particular transaction, Give consideration as to whether it is necessary to review the assessment of capacity at an additional meeting in the near future,
• Do not regard an individual as lacking capacity because of an apparently imprudent decision, and
• Ensure that immediate and comprehensive notes are made of any assessment of a client’s capacity.

It is important to note that mental illness does not preclude testamentary capacity. Where a client with a known mental illness presents himself/herself and indicates a wish to make a will, a solicitor must clearly establish the presence or absence of testamentary capacity.

If in doubt, a medical opinion should be sought before proceeding. If the client is under the care of a consultant, his/her opinion may be the more relevant one, rather than the testator’s general practitioner. However, it is the solicitor’s obligation to determine whether or not the client has testamentary capacity. Medical evidence may be of assistance, but is not a substitute for a legal determination of capacity.

Careful notes should be made and recorded where the client lacks sufficient capacity and a solicitor concludes that it is not possible to obtain instructions. Similarly, where there is a doubt as to capacity but a solicitor proceeds to draft a will on the basis that there is capacity, very careful and detailed notes setting out the full circumstances should be made, with a contemporaneous attendance of the circumstances surrounding the taking of instructions and the preparation and execution of the will.

4. Taking instructions. The taking of instructions and the drafting of the attendance are two separate stages in the process of making a will for any client. Instructions⁵ are what the client directs and instructs a solicitor to do in relation to his estate in the course of the interview for preparation of the will. The attendance is the record of what was actually said in the course of the consultation.

The will, when drafted, must reflect the testator’s instructions. For this purpose, a solicitor must ensure and take extra care in interviewing the elderly client that:
a) Details of the assets of the testator have been obtained, including

• Their nature and extent,
• Their value,
• Those held in joint names,⁶ and
• All/any benefits payable on death.

b) All information concerning the testator’s family is available, including those who

• Are vulnerable or needy family members particularly dependent on the testator and for whom the testator may have an obligation to provide,
• Have received sufficient benefit from the testator,
• Are financially better off than others,
• Are more caring of/enjoy a closer relationship to the testator.

c) The testator has been advised comprehensively on

• The provisions of all relevant legislation,
• Any tax implications of the testator’s wishes for his will⁷.

5. Attendance. Following the taking of instructions and on the completion of the consultation with the elderly client, a solicitor should immediately draft the attendance. This document may be invaluable at a later stage as evidence of the instructions given that gave rise to the drafting of the will and in establishing that the will of the testator was made in the absence of undue influence. A solicitor should also record in the attendance the assessment of the testator’s mental state, particularly so where there may be a doubt about capacity to make the will. The attendance should record details of examinations and findings, with clear and comprehensive notes of what steps were taken to establish capacity, and, where relevant, to explore any changes or alterations from earlier wills.

6. Execution. Following the taking of instructions and the preparation of the attendance, solicitors should ensure that wills are drafted and executed promptly – particularly when clients are elderly or are known to be ill.⁹ Practitioners should also be aware of their duty of care to putative beneficiaries.¹⁰ Just as when obtaining instructions, it is important that the testator is seen and interviewed alone by a solicitor immediately before the execution of the will to avoid the possibility of undue influence .If this is not possible, due to exceptional circumstances such as the testator’s poor health or otherwise, the client should be seen in the absence of any interested parties.

7. Post-execution. The importance of the attendance notes at the time of the execution of the will should not be overlooked and should be prepared with due care, particularly if there is a doubt about capacity, concerns of undue influence or other circumstances. Capacity to make a will is a requirement when instructions are given and again when the will is executed. A solicitor should, at the time of execution, record and preserve details of his/her attendance on the testator, including those present (if any) and examinations and findings as to the execution of the will and the testator’s capacity.¹¹

The Probate Office may require an affidavit of mental capacity where a testator dies in a nursing home or institution, notwithstanding the date of execution of the will.

It may be prudent for a solicitor to arrange to obtain a medical report as to the testator’s cognitive ability from his/her doctor. The reporting doctor should see the patient within 30 days of the execution of the will, though ideally certification should be contemporaneous. The doctor should be advised that the solicitor is endeavouring to assess whether the testator has testamentary capacity. It should be emphasised to the doctor that a general assessment of the client’s mental condition is not what is required. As stated above, medical evidence may be of assistance, but it is not a substitute for a legal determination of capacity.

It may also be prudent to have one of the attesting witnesses swear an affidavit of attesting witness.

8. Appointment of executors. Solicitors should ensure that the elderly client gives due consideration to the appointment of executors and, as dictated by circumstances, any advice given should include:

• The advantages in the appointment of the testator’s spouse (if any) as sole or co-executor, unless circumstances indicate good reason to do otherwise. This will avoid the possibility of the surviving spouse’s wishes or interests being overridden or manipulated by others. Further, where the surviving spouse is an executor, he or she will be best placed to exercise his or her right to the legal right share.¹²
• The potential for conflict of interest in the appointment of certain executors, such as the step-parent of the testator’s children, and the effect this may have on the administration of the estate.
• The need for extra care in the choice of executor where the testator wishes to make special provision for needy children or other family members (such as elderly siblings).

9. Confidentiality. A will is a confidential document. Neither the contents, nor the fact of its execution, should be disclosed to any third party. This is of particular relevance where there is any possibility or question of abuse, financial or otherwise. Further, it may not always be wise or prudent to post a draft will for review to a testator.

10. Powers of attorney. While taking instructions for an elderly client concerning the completion of a will, a solicitor should take the opportunity to explain the concept of, and the advantages and risks involved in, completing an enduring power of attorney.

Subcommittee on Financial Aspects of Elder Abuse, Guidance and Ethics Committee

Footnotes
1. “‘Capacity’ means someone’s ability to do something. In a legal context, it refers to a person’s ability to enter into a transaction or exercise rights which may have legal consequences for other people, such as making a will, a gift, a contract or an enduring power of attorney, or generally being able to manage one’s property and affairs” – Tolley’s/STEP, Finance and Law for the Older Client at D1: Legal Capacity.
2. (1870) LR 5 QB 549.
3. See Banks v Goodfellow (1870) LR 5 QB at 549 and Richards v Allen (2001) WLTR at 1031.
4. Tolley’s/STEP, Finance and Law for the Older Client at D1
5. See also comments of Barron J in Carroll v Carroll (IR 1999): “a solicitor or other professional person does not fulfil his obligation to his client … by simply doing what he is instructed to do. He owes such person a duty to exercise his professional skill and judgement and he does not fulfil that duty blithely following instructions without stopping to consider whether to do so is appropriate. Having done so, he must then give advice as to whether or not what is required of him is appropriate.”
6. Establish, where real property is held jointly, whether it is held as a tenant in common or as a joint tenant. Also have regard to the fact that elderly people often open or convert bank accounts to a joint basis or will have dual mandates for ease of lodgement or withdrawal due to lack of mobility, frailty or other reasons. A joint account or mandate will not necessarily result in the asset passing by survivorship. The testator’s intentions with regard to monies in such an account should be recorded in the attendance and, where it is clear that a resulting trust arises, this asset should be included in the Will. See also practice note “Joint bank accounts – guidelines for solicitors” in the December 2008 Gazette, p63.
7. Where a solicitor does not have the expertise to advise the client on taxation matters, the client should be advised to seek professional advice on the taxation implications of any proposed will before finalising the document.
8. Copies of any medical reports obtained should be retained with the attendance.
9. In X v Woolcombe-Yonge [2001] WTLR, the court held that seven days would be a sufficient short period “in most cases” where the client was “elderly or likely to die”, but “where there is a plain and substantial risk of the client’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.”
10. See the case of Hooper v Fynmores (2002) Lloyds Ref.PN18, where the court held that the delay caused by the solicitor in failing to ensure the expeditious execution of a will generated a liability to a disappointed beneficiary.
11. Including medical reports if obtained at this stage.
12. Succession Act 1965, s116.

Subcommittee on Financial Aspects of Elder Abuse