What can happen when a solicitor does not follow best practice when drafting a Will?

The case of a £100 million estate and a £140 Will

In the recent case of Reeves v Drew & Ors [2022] EWHC 159, a private client solicitor had to explain to the court that he charged a multi-millionaire client just £140 plus VAT to prepare his Will because he provided a ‘Primark’ service.

It will come as no surprise that the Will was later challenged and legal action followed. The trial lasted 3 weeks and involved 49 witnesses. During his evidence, the solicitor who drafted the Will compared the quality of service he provided akin to the quality of clothes at Primark. This resulted in the judge criticising him for being an ‘unsatisfactory witness’ and for providing a poor standard of service for his client.

A dispute over the validity of the Will

The testator died in 2019 leaving a self-made £100 million fortune. He had four children.

In 2014 he had instructed his solicitor to prepare a new Will for the fixed fee of £140 plus VAT. In this Will the Claimant left 80% of his estate to his youngest daughter.

In the face of arguments raised by the rest of the family, the daughter brought a claim for the court to order that this Will was valid and should be used to administer her father’s estate.

 The defendants argued that the £140 Will was invalid on the grounds of undue influence and want of knowledge and approval. To succeed in a claim for undue influence you must show that someone has forced the testator into making or changing their Will to benefit them – in this case it was argued that the testator’s daughter had done this.

A claim for want of knowledge and approval is brought where you suspect that the testator did not know what was in the Will and did not approve its contents. Again, it was argued that the testator’s daughter had orchestrated the drafting of the Will and that the testator was not aware of its contents when he signed it.

The solicitor could not provide sufficient evidence

In these types of cases, the solicitor who drafted the Will would be a crucial witness. This is because they can say whether the deceased was acting on their own; whether there were any outside influences; and whether they were confident that the deceased understood the terms of the Will at the time of execution. For this reason, the Will file will usually provide an important evidential trail.

However, the solicitor who prepared the Will told the Judge that he provided a ‘Primark’ service when it came to drafting and, as a result, there was no clear trail to show that the deceased had given clear instructions to his solicitors or that he understood the terms of the Will he eventually signed. There was also no attendance note confirming that the solicitor had taken detailed instructions on such a large estate, or that he had given any consideration to speaking directly to the deceased instead of through his daughter.

The defendants wanted the court to uphold an earlier Will (drafted by the same solicitor) under which the estate would be split more fairly between family members. Under the earlier Will the claimant, the testator’s youngest daughter, would receive approximately 26% of the estate.

The court found that the claimant had not been able to prove that her father knew and approved the contents of the 2014 Will and the judge thought she had probably engineered the Will to ensure that she would receive the bulk of the estate. The judge was extremely critical of the service the solicitors had provided and the resulting lack of evidence surrounding the execution of the Will.

This is one of the largest estate disputes to be determined in this jurisdiction and it is arguable that this could have been avoided if the deceased had sought a better service when preparing his Will.

What are the signs that best practice has been followed when preparing and drafting a Will?

Usually, Wills prepared by solicitors are harder to challenge because, speaking generally, a professional would ensure that: the testator had capacity; was not under any undue influence; and that they knew and understood the terms of the will. However, this case provides a stark example of where best practice was not followed

If you are a beneficiary, or if you have been excluded, it can be hard to know if your loved one’s Will is valid and whether you have a strong case to challenge it.

Signs that best practise has been followed include:

• There is an impeachable trail of evidence that the solicitor followed the instructions they were given.
• Any alterations are recorded in attendance notes and include the reasons for any changes. Alterations written as notes on a Will are insufficient.
• The beneficiaries were not present when the testator was giving instructions to their solicitor
• Meetings between the testator were solely about the Will, with no other business discussed at the same time.
• The attendance notes record what steps were taken to bring the terms of the Will to the attention of the testator.
• Any suspicions about the testator’s capacity to make a Will should be recorded in the attendance notes and further steps taken recorded.
• If any family members are excluded from the Will, there should be a record of the reasons why.