Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Homemade wills are, generally, easier to challenge. There are a number of things which a court will be looking for when it considers whether a testator was capable of making a will. Firstly, the person must have the requisite mental capacity to make a will. They must also know and approve the contents of that will.
When a professional will writer or solicitor takes instructions from a client where mental capacity may become an issue in the future, it is strongly encouraged that they follow a set of procedures in the hope of limiting future litigation (the so-called “Golden Rule”). The solicitor should ask open questions to the testator such as why the testator is making or changing their will, questions as to their understanding of their estate and details of prospective beneficiaries. A solicitor can instruct a medical professional to assess whether the testator has the requisite capacity. This is usually when the testator’s wishes are particularly unorthodox or when family members are already thinking about making a claim against the estate when the testator has died.
This procedure will obviously not have been followed if someone is producing a will at home. If a testator is elderly or ill, then the lack of medical or professional involvement makes it easier for a disappointed beneficiary, or, rather, non-beneficiary to challenge that the testator did not have the required testamentary capacity.
Further, when the court is asked to consider whether someone had capacity, they will examine contemporaneous documents from when the testator made their will. If the testator has instructed a professional, this will include the solicitor’s file and attendance notes as well as (potentially) a medical report. When a person has not instructed a professional to prepare their will then there is likely to be a lack of contemporaneous information.
Closely linked to a claim for a lack of testamentary capacity is that the testator lacked the knowledge and approval to make their will in the terms that they did. Where a testator is found to have testamentary capacity, then knowledge and approval of the will will be inferred. Where there are circumstances which “excite the suspicions of the court” then the court will investigate whether the testator had knowledge and approval.
Suspicious circumstances include concerns about capacity, language being used that isn’t common for the testator, spelling mistakes and uncharacteristic errors and, in the case of second or subsequent wills, differences to the first will (particularly where the beneficiaries have changed without seemingly obvious reason).
These sorts of circumstances are more commonly seen in homemade wills.
Finally, homemade wills may be made with the assistance of a person who hopes to benefit from the will. Such circumstances may give rise to allegations of undue influence by that person, that they have in some way coerced the testator to make or alter their will. If a solicitor or will writer prepares the will and follows the Golden Rule, they will ensure that the instructions are taken in the absence of any other person to ensure that the testator is making decisions without pressure from a third party.
Gifts left in a will take effect only if the rigorous legal requirements for capacity/ knowledge and approval elements are met. The testator must also sign the will in the presence of two independent witnesses. If a beneficiary (or their spouse / civil partner) witnesses the will, the gift to that beneficiary becomes void.
In contrast, there are few strict legal rules for an effective lifetime gift and the level of capacity required is lower. Unless there is evidence of undue influence, it is likely that lifetime gifts will be valid provided the person understands they are making a gift.
A person can also make a lifetime gift that takes effect upon death without the formalities for a valid gift by will. This is called Donatio Mortis Causa (“DMC”) or “deathbed gift”. To make a valid DMC, the donor (person making the gift) must:-
The donor can revoke the gift any time before he dies. If he survives, the gift fails and the property in question will still belong to the donor.
It is disconcerting that effective gifts can be made, taking effect on death, with minimal formality at a time when the donor is at their most vulnerable and near to death. There may also be issues with the donor’s capacity and whether they would have fully understood the effect of making the gift.
Set against this context, it is really important to ensure that the donor intends to make the gift and was not placed under undue influence at the time.
The recent case of Re the Estate of Ellen Elizabeth Exler (Deceased) stresses the importance of intention when determining the validity of a deathbed gift. Mrs Exler died intestate at the age of 91. She was mentally and physically frail. Mrs Exler’s husband had pre-deceased her and she had no children. Her estate therefore would pass under the intestacy rules to her two surviving brothers and her two nieces who had survived Mrs Exler’s late sister.
Mrs Exler’s estate was worth £564,013.15. Her house (Hadley House) was worth £550,000.
Hadley House was unregistered and Mrs Exler kept the property deeds at her home. Mrs Exler’s brother, Stephen Keeling, was the personal representative. Whilst he administered the estate, Mr Keeling claimed that his sister made a deathbed gift of Hadley House by telling him, “I want you to have them [the deeds to her house]. I would rather you had it then anyone else” before she died and in contemplation of death.
Mrs Exler’s other brother and nieces claimed that Mrs Exler did not make a deathbed gift. She was openly hostile towards Mr Keeling and had told her carers that she did not want him and his wife to inherit her money and that “they would never get my house, over my dead body”.
The High Court decided that Mrs Exler had not made the statement that Mr Keeling relied upon; in particular, she had not mentioned the gift to anybody else. No effective gift had been made.
Deathbed gifts are more commonly made (and even more commonly alleged to have been made) than one might expect. They are frustratingly difficult to grapple with post-death; the gift is usually a private matter and only the donor (now dead) and (self-interested) donee will really know what happened. A fairly low level of judicial doubt will often defeat the gift; they are accordingly much easier to challenge than a legacy left in a valid will prepared by a professional.
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