{"id":855,"date":"2024-03-07T14:00:00","date_gmt":"2024-03-07T14:00:00","guid":{"rendered":"https:\/\/ctt-group.co.uk\/legal\/?p=855"},"modified":"2024-03-05T14:20:49","modified_gmt":"2024-03-05T14:20:49","slug":"ethical-will-writing-balancing-client-wishes-with-legal-realities","status":"publish","type":"post","link":"https:\/\/ctt-group.co.uk\/legal\/ethical-will-writing-balancing-client-wishes-with-legal-realities\/","title":{"rendered":"Ethical Will Writing: Balancing client wishes with legal realities"},"content":{"rendered":"
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Alongside the need for legal compliance, advisers must also meet ethical considerations when drafting a will. This includes navigating complex family dynamics, as well as honouring client wishes and managing their expectations.<\/p>\n

This tricky balancing act of satisfying both legislative demands and those of the client can present a challenge for advisers, particularly when there\u2019s conflict between what\u2019s best for legal compliance and what the client feels is best for their family circumstances at the time of drafting.<\/p>\n

\u201cFamily dynamics are increasingly complex, which means the \u2018fixed interest\u2019 approach to drafting wills is a dinosaur,\u201d says CTT\u2019s Technical Director, Spencer Tattam. \u201cLeaving assets that will go to the client\u2019s beneficiaries no matter what the circumstances are at the time of death is a thing of the past.\u201d<\/p>\n

He points out that: \u201cMost often, a client’s estate will end up where they want it to go \u2013 but there is always that \u2018what if…\u2019 to consider. What if they have a falling out with their son? What if their daughter goes through a divorce…? What will happen to their estate then?\u201d<\/p>\n

Futureproof flexibility <\/strong><\/h4>\n

There are numerous factors that can compromise a client\u2019s estate and wishes when the time comes to execute their will. To avoid the uncertainties of drafting a will that may prove unfit for purpose in decades to come, CTT specialises in creating trusts that are both legally compliant and offer executors greater flexibility during probate.<\/p>\n

These trusts are designed to allow the testator to appoint trustees, whom they believe will make the best decisions regarding the assets placed in trust when the time comes to execute the will. By appointing professional trustees such as CTT, clients can also be assured their executors\u2019 decisions will be neutral and unaffected by grief or family politics.<\/p>\n

\u201cHow we approach estate planning and how we apply the trusts we use is different from everybody else,\u201d Spencer explains.\u00a0 <\/strong><\/p>\n

\u201cI can\u2019t possibly know what\u2019s going to be the best will for you when you die; I can draft you a will that reflects your wishes right now, but it might not necessarily be the will you want in 50 or even 15 years\u2019 time, because circumstances change. So, we create trusts that are not only tax-efficient but also flexible. We can tailor it to the client’s current wishes but also build in this flexible approach to avoid future threats as far as is possible.\u201d<\/p>\n

To the letter?<\/strong><\/h4>\n

With a will such as this, the trust or trusts are accompanied by a non-binding letter from the testator outlining their wishes to the trustees. This document, which is signed by the testator, allows them to stipulate their preferences for the distribution of assets placed in trust at the time of writing, but it also allows the trustees to use their best judgement when the time comes to execute the will.<\/p>\n

Spencer goes on to explain that, although the testator\u2019s wishes will always be paramount, there are circumstances where trustees might rightly decide to depart from the word of the letter.<\/p>\n

\u201cI experienced a classic example of this when I was head of CTT\u2019s Probate Team,\u201d Spencer recalls. \u201cI had a phone call from a solicitor who was representing a lady going through a divorce. She said she understood we were executors for her client\u2019s late mother-in-law, and that the deceased\u2019s son was a likely beneficiary of the estate. She wanted to know what he had received from the trust as it might contribute to his share of the divorce settlement. We hadn\u2019t gone through probate yet, so I was able to tell her with confidence that he had received nothing from his mother\u2019s estate.\u201d<\/p>\n

\u201cA letter followed a few weeks later from the same solicitor asking us to now confirm what the son had received from the trust. We were able to tell her that, as he was going through a divorce, we as trustees had decided to hold back on giving the son any capital from the trust on the basis that half of it would end up going down an avenue the deceased did not expect. So, we benefitted his siblings, and once the son\u2019s divorce was complete, we were able to find in his favour and in doing so saved him 50% of his inheritance.\u201d<\/p>\n

Finding the balance<\/strong><\/h4>\n

Some of the most complex and difficult client requests often come when there are multiple children who stand to benefit, but the client decides that one or more children is to receive nothing from their estate.<\/p>\n

\u201cThe will becomes a public document when the client passes away, which can rub salt into the wounds for any beneficiaries who\u2019ve specifically been excluded,\u201d Spencer says. \u00a0\u201cIn our experience, it\u2019s best to tell the client exactly what they need to do if they want to exclude a child from their will.\u201d<\/p>\n

The Inheritance (Provision for Family and Dependants) Act 1975 is one of the biggest legal obstacles preventing testators from successfully excluding a child from their will. It stipulates that children \u2013 even adult children \u2013 have priority rights on their parents\u2019 estates, second only to the deceased’s spouse.<\/p>\n

\u201cIf a client wants to disinherit their child, they need to reason why they’ve done it in their letter of wishes; simply excluding them in the will is not enough,\u201d Spencer explains.<\/p>\n

He cites the landmark case of Ilott v Mitson in which an estranged daughter, who\u2019d had no communication with her late mother for nearly 40 years, sought a claim against her estate \u2013 and won. The claim was successful, despite the mother expressly cutting her only child out of her will in favour of leaving her estate to several named charities.<\/p>\n

\u201cEven though the testator wrote a letter of wishes outlining all the reasons why she didn\u2019t want her daughter to get anything, there was no evidence that the mother had any prior relationship with the charities she\u2019d chosen as beneficiaries,\u201d Spencer explains. \u201cIt seemed out of character, and so, the daughter walked away with \u00a350,000 of her mother\u2019s estate.\u201d<\/p>\n

He iterates that, in these circumstances, some responsibility lies with the adviser to ensure the client uses their letter of wishes to not only explain why they want to exclude someone from the will, but also why their chosen beneficiaries are inheriting.<\/p>\n

\u201cWe\u2019d also advise clients to keep all documents and letters to trustees under lock and key and to be very careful where copies go; this avoids inviting any outside opinions or challenges during the client\u2019s lifetime on where their assets should go when they die,\u201d he says.<\/p>\n

This can also prevent Proprietary Estoppel, where an individual acts to their detriment during the testator\u2019s lifetime under the assumption they will benefit from a property or land when the testator dies \u2013 and then uses their reliance on the assumption and subsequent diminished circumstances to lay claim to the property or land following the testator’s death.<\/p>\n

Protecting yourself and your client<\/strong><\/h4>\n

Understanding ethical practice around taking instruction is also important to protect both client and adviser in the event of a Larke v Nugus. \u201cIf another practitioner writes to you with a Larke v Nugus request you have to produce your whole will file and answer detailed questions about your relationship with the client and your instruction taking for their will,\u201d Spencer explains.<\/p>\n

\u201cWe help our member advisers capture this data at source with Legacy Software\u2019s Will Clarity Statement. It covers all Larke v Nugus answers and some additional information as well, particularly the reasons for excluding or including certain beneficiaries. It\u2019s also signed by the client \u2013 most likely, a Will Clarity Statement would have prevented a lot of the Ilott v Mitson problems,\u201d he says.<\/p>\n

Another potential grey area for practitioners is during execution where challenges can arise around the signing of the will. For this, CTT provides its members with an Execution Statement which captures information around the documents being executed.<\/p>\n

\u201cOur Will Clarity Statement and Execution Statement are designed to protect the instruction taker, but also the wishes and the legacy of the client,\u201d Spencer says. \u201cThey ensure the level of due diligence is the same for every client, no matter the value of the estate, and that the end beneficiaries get what the testator intended, even if the will is challenged; that’s our job as advisers.\u201d<\/p>\n

The Will Clarity Statement and Execution Statement are also invaluable tools for protecting both client and adviser in the event the will should ever be contested on the grounds of coercion.<\/p>\n

\u201cCoercion and fraudulent calumny can be tricky to detect,\u201d Spencer says. He suggests the process of taking instructions for a client\u2019s will should involve a discussion around the content and nature of any previous wills and for advisers to be vigilant of changes that seem inconsistent or out of character.<\/p>\n

\u201cAny sudden and significant departures from previous wills can be a sign of coercion, particularly if the departure seems unnatural or strange such as leaving everything to a \u2018new\u2019 partner as opposed to children, or giving everything to just one child when they have multiple children,\u201d he points out.<\/p>\n

\u201cIf there is any doubt regarding the capacity of the client then a mental capacity assessment should be sought. This is the best way to ensure the legacy of the client is as safe as it can be.\u201d<\/p>\n

\u201cIdeally, instructions should always be taken with just the client present, and at least confirmed with nobody else present. Any significant or unusual changes or client dispositions should be justified by the client in a letter that\u2019s stored with their will and recorded by the adviser in the Will Clarity Statement,\u201d Spencer concludes.<\/p>\n

The takeaway<\/strong><\/h4>\n

Protecting and upholding the client\u2019s wishes and ensuring all documents are legally compliant are among the key responsibilities for advisers when taking client instruction. CTT provides various drafting and training tools, such as Legacy Software, as well as legal products including bespoke trusts, to help guide advisers through the will writing process and ensure your drafting is current, compliant, and flexible. For more, contact the team at CTT Legal.<\/a><\/p>\n\n\t<\/div>\n\t

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