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Claims of our age

15 October 18

Risk management: some of the issues facing solicitors dealing with private client work advising the elderly

by Jennifer Quinn

They say old age doesn’t come alone, and that is certainly true when undertaking work in a world where we have an aging population. With this being an ever-increasing demographic, the areas in which complaints and claims are being made are changing.

There are a number of trends emerging with claims arising out of our aging population, including incorrect drafting of powers of attorney, capacity issues, succession planning and will disputes.

Considering capacity

The knowledge and skills of legal practitioners in the area of private client must develop in connection with the assessment of capacity. It is a difficult area and one where there is a real reliance on the judgment of the practitioner. While solicitors can request a medical report where they have some concerns over a person’s capacity, this is not always an approach that is favoured. Often, it will be the judgment of the most experienced member of the team that will be used to help judge a person’s capacity, accompanying their colleague to client meetings if necessary.

Practical issues ought to be considered when taking instructions from a client where capacity is potentially an issue. For instance, consideration should be given to the location of the meeting. It may be easier for the client if the meeting takes place in their home, for example. It is best practice to prepare a comprehensive note after any meetings; such a note may become invaluable should a complaint or claim arise surrounding an individual’s capacity. The note should contain details such as the time of the meeting, that the client understood what the meeting was about and the consequences of their instructions. If there is any doubt about the client’s capacity, a medical opinion should be sought.

Where issues surrounding capacity arise, there are a variety of claims or complaints that may be made against the solicitor. Disappointed beneficiaries may raise a claim and challenge the testamentary capacity of an individual.

Succession planning issues

Claims that may arise out of succession planning may include failure to consider the extent of an individual’s assets.

While the Succession (Scotland) Act 2016 went some way to modernise the area of estate planning and inheritance law, there are still a number of areas where review is required. Adding to the complexities of estate planning is an increasing number of blended families. The more complex the planning, the increased risk for the solicitor putting an individual’s wishes to paper.

The 2016 Act gave new powers to the court to rectify a will where it is satisfied that the will fails to express the testator’s instruction accurately, and a former spouse or civil partner will no longer inherit under an existing will following divorce.

South of the border

Changes are afoot in England & Wales, where the Law Commission is looking to modernise the law in this area, presently governed by the Wills Act 1837. The consultation was caused by a variety of reasons – the aging population and the greater incidence of dementia, the evolution of the medical understanding of disorders and conditions that could affect a person’s capacity to make a will, and the emergence of and increasing reliance on digital technology.

Changes currently under consultation include enabling the court to dispense with the formalities for a will where it is clear what the deceased wanted; amending the test for capacity to make a will to take into account the modern understanding of conditions like dementia; providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will; and new rules to protect those making a will from being unduly influenced by another person.

In recent years, an unsent text message was deemed to have testamentary effect in the Supreme Court (Trial Division) in Brisbane. Cases such as this highlight how antiquated the current law is, lagging behind technological advances.

It will be interesting to observe what changes are made following the consultation. In a number of the areas under consultation, practitioners are already aware of issues on a practical level. Whether the outcome of the consultation and the proposed changes have any impact north of the border remains to be seen.

Jennifer Quinn is a solicitor with DWF LLP, Glasgow

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