“We must make haste then, not only because we are daily nearer death, but also because the conception of things and the understanding of them cease first.” Marcus Aurelius
With Alzheimer’s and dementia now the leading cause of death in England and Wales, how does this impact on Private Client Practitioners?Dementia is the biggest health crisis of our time, experts have said, as statistics show the condition was the primary cause of death in England and Wales last year. Almost one in eight people died from Dementia and Alzheimer’s disease in 2018, with the proportion increasing for the fourth consecutive year – up from 12.7% in 2017 to 12.8% in 2018. There were 541,589 deaths registered in England and Wales last year, the highest total since 1999, and the numbers of people living with Dementia in the UK are expected to rise to 1 million by 2021 (Source: The Guardian).
So, what does this mean for us?
The increasing instances of Dementia and Alzheimer’s as the underlying cause of death increases the possibility of challenges to testamentary capacity or the distribution of an estate.
For private client practitioners increasing longevity and the resulting increase in cases of Dementia and Alzheimer’s undoubtedly leads to an even greater need for ensuring that your Will writing systems are water tight!
As legal professionals, we are all aware that a Will can be contested on the following grounds:
- 1) Lack of capacity
- 2) Lack of knowledge and approval
- 3) Undue influence
- 4) Lack of due execution (Wills act 1837)
- 5) Fraud and forgery
Everyone has the right to leave their estate to whomever they choose in their Will
Rightly so, but it is this very liberty that is the cause of so many disputes from those who did not benefit as they expected. This is why when taking instructions, we need to ensure that not only “what” the testator wants to happen is accurately recorded, but their reasons behind these decisions are too.
Unfortunately, these details are not included in the Will itself, so what are the options? You would be forgiven for thinking that this could be overcome by robust staff training but no matter how good the training is, there is still room for error.
As a Manager of Will writers, can you be 100% positive that:
- ALL of the relevant questions are being asked EACH and EVERY time and the Testator’s responses understood and accurately recorded?
- EVERY member of your team has interpreted and understood the training provided to them correctly?
- HOW the attendance notes are being recorded by staff will prove to be sufficient in the event of a claim?
Or are you having to waste precious time checking each and every Will instruction because your Will writing systems are just not up to the job?
The courts have been critical where attendance notes have not been produced and in Key -v- Key and others  EWHC 408 (Ch) Mr Justice Brigs criticised the solicitor (Mr Cadge) and stated, “The only notes that Mr Cadge made of this interview consisted of a few lines of manuscript, hastily scribbled on the back of a letter about a wholly unrelated matter for a different client, which was, extraordinarily, produced by way of disclosure only halfway through Mr Cadge’s cross-examination”.
It is vitally important therefore to produce and retain, detailed and unambiguous attendance notes of client instructions to mitigate the risk of a Will challenge.
The days of making notes in margins or on loose pieces of paper are long gone
The best way to protect both your clients and your business is to invest in a system that manages the entire Will drafting process from instruction taking to execution.
Our legal document drafting software, Countrywide Legacy, manages the entire process from start to finish and produces all client care documentation at the click of a button. Seamlessly guiding the user through, our software asks all the necessary questions during the instruction taking process to ensure the client's surrounding circumstances and reasons behind the decision-making are fully documented, and includes a robust set of questions to be answered on testamentary capacity.
This means that you retain an electronic comprehensive record of all crucial facts throughout every stage of the process automatically, saving time and reducing risk at every turn.
What’s more, the Will Clarity Statement is signed by the client at the same time as signing the Will, offering protection from claims on the grounds of Lack of capacity, Lack of knowledge and approval and Undue influence. In addition, the Statement of Execution, which is also signed at the time of execution, helps to protect you against claims for Lack of due execution and Fraud & forgery.
By having the client read, confirm and sign all of the paperwork means that you have, in effect, evidence of “the voice of the client”.
Written by Countrywide Tax & Trust Corporation Ltd
The Private Client Professor
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