Blotting your copybook

Will drafting doesn't get much media attention but Joan Edwards' will hit the national headlines in August. Her residuary estate was left to 'whichever government is in office of the date of my death for the government in their absolute discretion to use as they think fit' and firm appointed to act as executors paid this to the Conservative and Liberal Democrat coalition, the parties in power when Miss Edwards died.

Commentators were outraged. They alleged that, in interpreting "government" as political parties, the executors had failed to give effect to Miss Edwards' wishes. The legacy was subsequently applied to the Treasury, which it was argued (in the absence of any supporting evidence) must have been Miss Edwards' intention.

Richard Roberts, chairman of the Law Society's wills and equity committee, placed the responsibility for the Joan Edwards conundrum on the shoulders of the will draftsman, who had failed to convey the client's intentions. He said: "All wills need to be very carefully drafted and not subject to any ambiguities. Solicitors must check and recheck with their clients."

Mr Roberts also flagged up the Law Society Wills and Inheritance Quality Scheme (WIQS), which he hoped would "raise standards." This is presented by the society as a way for SRA-regulated firms to distinguish themselves from non-regulated will draftsmen.

I have lost count of the clients who, often in jest, query the difference between our fees and the cost of obtaining a will-writing pack from the high street. And I was amused to hear recently a partner describe a situation in which a client having approached her firm to draft a will, purchased a tome on will drafting, leading to discussions of every eventuality and administrative provision. The will had yet to be finalised and en route to purchase volume II said client died unexpectedly - and intestate. If that is not a cautionary tale against DIY wills, I don't know what is.

Justifying costs

From the adviser's perspective, it is easy to justify the difference between the cost of a bespoke will and an off-the-shelf product - the cost to the firm of maintaining professional indemnity insurance is one, although this is not such a cheery note on which to begin a client relationship. Clients are paying for a will tailored to their needs and wishes. Part of our job being to determine (and, where necessary, distinguish between) a client's needs and wishes, giving effect to them as closely as possible.

As part of WIQS, the Law Society is offering us further training, which can only be a good thing. Precedents are wonderful but clients do not fit neatly into them, and the ability to use the law to clearly and concisely give effect to a client's wishes remains vital.

Commenting on RSPCA v Sharp, Professor Lesley King refers to this as a "moral duty" quoting Neuberger LJ, who said: "I have no real doubt but that the testator who executed the will, and indeed the solicitor who drafted it, thought that the effect of clauses 3 and 4 was clear. Unfortunately, what appeared clear from their perspective at the time is far from clear to subsequent readers of the document."

This is the will draftsman's challenge and, for many of us, is what we enjoy about being private client advisers. So how do we address the challenge? We can start by aiming to get the simple things right and not causing problems through sloppy mistakes, which can make a big difference.

Fresh aims

Raising the bar from the bare minimum, we can aim afresh to:

• carefully consider each time we take instructions from a client (however seemingly routine) their intended outcome; and
• where it is necessary to depart from tried and tested precedents, give careful thought to potential interpretations and legal consequences of the drafting choices we make.

Often the pressure of work is to blame, but to distinguish ourselves from the non-regulated will draftsman and to warrant the higher fee, we must offer more than the ability to put pen to paper. I am sure Joan Edwards would have agreed.

 

Hannah Herbert is a case manager at Penningtons

The firm writes a regular blog for Private Client Adviser