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Wills at a distance

15 April 13

This month's Professional Practice column deals with "knowing your client" when preparing a will, and the pending regulation of will writers

by Stella McCraw

Question 1

I am keen to develop the provision of online services for my clients and indeed attract new clients by making my services as accessible as possible. I would like to include will preparation in such services. Before I commit to this venture I want to know if the Society has any particular views or requirements regarding this proposal?

Answer to question 1

From time to time, the Professional Practice Committee has looked at the question of what contact between solicitor and client is appropriate when taking instructions for a will. To a large extent this will depend on how well the solicitor knows the client and the client’s circumstances.

The committee’s decision in 2006, published in the Journal in January 2007, was that what was described as “an encounter” with the client would be necessary to satisfy the solicitor on issues of capacity and identity. The nature of this encounter would depend on the circumstances.

Over the past few years there have been two types of initiative which have led to a significant increase in instructions for wills being taken from clients at a distance. First, mass campaigns by certain charities encouraging members of the public to make a will including a legacy to the charity have resulted in solicitors in a central location receiving proforma written instructions from new clients with little or no opportunity to have any face-to-face meeting with the client. Secondly, the development of online wills services has been significant in the past 10 years.

Both of these developments, combined with a different approach being taken by the courts in respect of solicitors’ duties to prospective beneficiaries in cases such as White v Jones [1995] 2 AC 207 (HL) and Holmes v Bank of Scotland 2002 SCLR 481 (OH) expose solicitors to greater risk of a claim or complaint in cases where the only contact with the client is an exchange of correspondence or emails.

In November 2011, the committee reaffirmed its view that taking online instructions to prepare a will is a risk management issue and will require a careful discharge of the obligation to “know your client”. It remains of the view that there needs to be an encounter with the client, the nature of which will depend on the circumstances. Where the client is well known to the firm, an exchange of letters or emails may well be sufficient, or even a telephone call, but a more personal encounter might be necessary for a new client.

Question 2

It is my understanding that all will writers are to be regulated. When will this happen?

Answer to question 2

Your understanding is correct. The Legal Services (Scotland) Act 2010 contains provisions for regulating will writers.

These provisions have not yet been brought into force and the Government has yet to indicate a timescale for doing so.

On a number of different occasions in the past two years, examples have come to the Society’s attention of situations where testators had been let down badly by unregulated will writers. These examples have been passed on to the Justice Directorate, urging it to bring the relevant part of the 2010 Act into force. It is also noteworthy that the media in England have recently started to campaign for the regulation of will writers south of the border, and hopefully that will prove to be a catalyst in Scotland too!

Stella McCraw is a solicitor in the Professional Practice team. You can contact Stella on 0131 226 8896 or stellamccraw@lawscot.org.uk

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