Sorry for the silence!
You may have wondered whether I had dropped off my perch or was sunning myself on some foreign shore. Neither in fact. I was none too well and then rather overwhelmed in catching up so my apologies for leaving you in the lurch just as the snow and cold hit.
While I have been off the air I have been busy with a number of conferences, consultations and considerations. What has become all too apparent from recent events is the inexorable rise in contentious probate. Is it time for all non-contentious probate practitioners to consider becoming litigators or at least understand what is involved in the processes and procedures of litigation and mediation?
A bone of contention
The Independent on Sunday reported on 28 November 2010 on an analysis of High Court statistics conducted by Wedlake Bell in which they noted that there has been a 38% rise over the past year in the number of people challenging the inheritances left by their relatives or partners.
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The number of High Court cases launched by children, spouses and cohabitants rose from 80 in 2008 to 110 in 2009; whereas there were only 10 legal challenges regarding Wills in 2006.
The size and value of post World War II estates which contain real property have grown in value with the general rise in house prices and may encourage unhappy families and disgruntled beneficiaries to fall out over the deceased’s treatment of their estate either under their Will or sadly because of intestacy.
As Judges frequently comment on the costs of probate disputes which continue to rise this makes for difficult probates and in the end no winners.
As non-contentious experts what can we do to try and reduce the likelihood of a dispute or at least provide the means to reduce the likelihood of protracted and expensive litigation?
We all know the importance of file notes. Cases challenging the validity of Wills are littered with examples of where proper file notes contemporaneous to the time of taking the instructions were conspicuous by their absence with the result that those whose evidence would be best, the person taking the instructions, is poor because they are unable to recall the particular circumstances and actions taken to satisfy themselves of the capacity of the intending testator or confirm or deny that a mistake was made between the instructions received and the Will which was prepared.
Equally important, but perhaps not as assiduously done, is a file note in respect of the execution of the Will. Andrea Pierce, Head of Legal Services at Kings Court Trust Corporation, says that “One of the most common questions raised by the Probate Registry when applying for a Grant is regarding the execution of the Will, and specifically with regard to the handwriting of the testator; this could be because it is a mark or there is a shaky signature.”
The risk here is that the Probate Registry may not accept that the deceased had knowledge and approval of the contents of the Will at the time of signature. If you supervised the execution of the Will it would be an easy matter to prepare a file note summarising what you did at the time of execution. It would also be an opportunity to test once more the testator’s capacity.
The recent case Kentfield v Wright  EWHC 1607 confirmed that the presumption of due execution required significant evidence to overturn a Will made where there is a proper attestation clause and the testator and the witnesses had the capacity to understand the wording of the attestation clause.
Proving knowledge and approval and due execution is surely made so much easier if the Will draftsman is a lawyer who has made an attendance note at the time of the execution of the Will setting out that the Will was read over to the testator and providing confirmation that he understood and confirmed the contents of the Will; that there were no circumstances which would impede this, such as being blind or unwell; and that the witnesses were both present when the testator signed or acknowledged his signature and both were present whilst they both signed their own signatures.
I have had two cases recently were Wills prepared by solicitors have been disputed and where the validity of the Will is in question and the quality of the file notes on execution is actually poor. In one case it will probably be satisfactory because the Will was made recently and both witnesses are still in the firm; whereas in the other case both had retired and only one was able and willing to provide an affidavit about the surrounding circumstances.
If we are not asked to supervise the client’s execution of the Will we have prepared we have no evidence from our own experience that the correct procedures took place and that at the time the testator had knowledge and approval of what was signed. Instead we would have to rely on the principle of due execution. The quality of our instructions to the client as to how he should sign his Will then becomes relevant.
In the aftermath of the case of Esterhuizen v Allied Dunbar plc  2 FLR 668 some firms took the step of restricting their retainer to the effect that they could not be responsible for the quality of execution if they did not supervise. Also other firms extended their written instructions as to execution to include a space for the witnesses to sign to confirm that the signing of the Will had taken place in accordance with those instructions.
The significance of the role of the witness was highlighted at the Conference organised by the Wills & Equity Committee of the Law Society which was held on 7 December 2010. The conference was addressing the vexed question of whether it was possible for solicitors to make valid Wills for clients over the internet. One questioner raised the valid point that maybe the time had come to raise the responsibility of witnesses to Wills to the level of certificate providers under Lasting Powers of Attorney and require them to make notes at the time of signing of the Will and to record the knowledge and approval of the testator to his Will and his capacity to undertake it.
We might yet wish to explore the use of tape recordings and other media in our practice when arranging execution or the taking of instructions as a tool to help reduce probate disputes which could be admitted to the Court as evidence in support of the propounder of the Will.
Without our personal involvement in the service of preparing a Will and the adequate making of file notes and other recordings of execution probate disputes will no doubt continue to rise and continue to bring misery and grief to both lay people and lawyers alike.
Take the opportunity to review your firm’s processes and procedures to see where you can add value to the service (by offering a recording); reduce cost (by using the internet to collect data to prepare the Will); and minimise the risk of a dispute (by careful face-to-face meetings of which contemporaneous notes are taken and filed).
© Gill Steel LawSkills Ltd
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