I’d be very grateful for your feedback on the following.
My clients, elderly couple, have a very small estate -£20,000. They gave me joint instructions to do standard mirror Wills. I have completed those and the same have been signed.
Husband has phoned me to ask if he can now amend his will so he leaves his share to his daughter rather than his wife. He doesn’t want to tell his wife on what he intends to do.
I am in a very awkward position I feel. Do I accept instructions from him solely to do a new Will, my gut is telling me no but I wasn’t 100% sure what the conflict position is.
If the wife only giving him her estate because she believes that he is giving her his,
Is the wife exerting undue influence on the husband to give her his estate, or
Has the husband since discovered something that has caused him to want to disinherit his wife?
There may be other scenarios under which the validity of either of their wills could be brought into doubt.
In the present circumstances, can you be certain that the will he signed is valid - did he have the appropriate animus when signing it?
Unless the husband can provide a convincing reason why he should change his will so soon, I suggest perhaps this is a case where you should “walk away”, having made a detailed file note in case a dispute arises into which you are dragged.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
A colleague told me about a very similar set of facts several years ago. A long-standing wealthy client of his, who had been divorced, came to see him with that client’s second wife. They made mirror Wills, each leaving everything to the other. A few days later the client came to see him again and said that he wanted to make a new Will to leave everything to his children by his first wife and he said that he had made the other Will only to keep his new wife happy. He was clearly trying to deceive her. She may not even have known that a Will can be revoked or replaced very easily and happily assumed that she would inherit everything if her husband died first. The solicitor refused to make the Will and was never told what his client did next.
Deborah’s situation may be similar and the husband may be trying to deceive his wife with no question of undue influence or lack of testamentary capacity being involved. Deborah referred to the husband wanting to leave everything to “his” daughter, rather than “their” daughter, which implies that the daughter may not be the wife’s daughter too.
The ethical issue for me is whether a solicitor put in the position that Deborah is in owes any duty to the unfortunate wife, who is also her client. It is not a pleasant situation.
I would certainly not make the new Will for the husband but no doubt he will easily establish that he can make his Will with any other solicitor.
Did the wills include a declaration to the effect that they were not mutual wills possibly on the following lines: –
“Although my spouse is making a will in similar terms to the terms of this will the two are not intended to be mutually irrevocable and each of us is free to alter the disposition of his or her estate in anyway and at any time without reference to the other”
If they did, then if I was presented with the matter I feel that I should take the husbands instructions but I’m sure others would disagree with me.
After all, provided they were each made aware of the possibility of either of them changing their will, it seems harsh to deny the husband’s request. Admittedly with a joint estate of £20,000 involved, it is not exactly attractive business.
The reason husband wants to benefit daughter is that he is concerned that if he dies first, wife will change will to benefit their younger daughter with whom wife has a better relationship.
Younger daughter has a far better relationship with mum than elder daughter.
Younger daughter is far better off financially than older daughter.
Older daughter is one of my best friends and I have known the family for years.
I think these facts probably do make a difference and I should step aside and let another will writer/solicitor get involved- if of course he wants to proceed.
In view of what you say, particularly your personal connection with the elder daughter, I agree that it would be best if you were not to act for the husband.
My understanding is that the STEP Code for Will Preparation provides that if a conflict develops that cannot be resolved, the will drafter cannot continue to act for both or all of them and will have to withdraw completely, and this includes subsequent changes to either will of which the other or others would not be aware.
Ethically, I don’t see how you could act for the husband in the circumstances outlined.
In response to the original post, I believe there is a potential conflict of interest between the clients. Therefore, you should not act for husband, as the initial instructions were taken jointly.
That said, I believe you could take instructions from husband only to amend his Will, if you inform husband that you must write to wife and advise her that he is changing his Will, and she consents to the same. (Wife does not need to know what amendments are made.) When amending/preparing husband’s new Will, this should be set up as an entirely new file and ideally dealt with by a different lawyer in the firm. (If wife wishes to amend her Will, a new file can also be opened for her, but you must be aware of your new duty of confidentiality.)
Given the fact that you have a personal connection with eldest daughter, then this is clearly a conflict of interest and you must not act for husband.
Can someone act for a client, where the client’s main beneficiary is also a very close friend of the person writing the will. Especially if the beneficiary provided the referral and the will writer is also to be a witness?
Is it just advisable not to act, or is there a legal reason not to act?
I suggest the fact that you’re asking the question says that you are nit comfortable with the situation.
I feel the circumstances are such that if an allegation of undue influence arose, it may be difficult to defend and could result in lasting damage to the friendship and the potential undermining of your reputation/integrity.
I would also be reluctant to act as a witness.
No matter how close a friend they are, they should instruct someone independent to prepare the will.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Really appreciate the reply and it confirms what I thought.
I’ve been trying to find a case to cite, where anything remotely similar has happened before. The nearest I can get is either Hawes v Burgess (2013) or Topciapski v Topciapski (2013). It would be good to show a friend why acting would be unwise, due to a previous court case.