Solicitor Kirsti Harvey, in our Wills, Probate, Tax & Trusts team, explains why we may ask to see clients alone when discussing Wills and Lasting Powers of Attorney.
We appreciate that, for many people, thinking about what will happen when you die or lose capacity is quite overwhelming. It is therefore no surprise that when meeting with us to discuss Wills or Lasting Powers of Attorney (“LPAs”), many clients ask for a family member or friend to be present. However, we will always ask to see the client alone.
Meeting with the client alone allows the solicitor or legal executive to speak openly with you. It is paramount that the you understand the advice that you are receiving and you are able to raise any concerns or questions, which you may not feel comfortable doing if a third party is present. When taking Will instructions it is necessary for us to ask questions relating to your personal circumstances or finances. No matter how close you may be to your chosen relative or friend, you may not wish to discuss these matters in front of them. Our aim is to put our clients at ease and ensure that we have all the facts so that we are able to advise them correctly. This cannot be achieved if you feel uncomfortable about answering questions and exploring sensitive issues with us.
When taking instructions for a Will or LPA, our team must ensure that you have the requisite capacity to execute the documentation and this is difficult to establish if a third party is answering questions on a client’s behalf.
The solicitor must be mindful of any pressure that a third a party may be placing on a client. This is known as “undue influence”. Undue influence isn’t always as clear as telling someone what to do or answering on their behalf. It could be persuading a client to agree with their point of view or imposing their opinions on a client by making comments.
An example
Andrew has two children (Bertie and Claire). Andrew attends the meeting with Bertie who makes comments about his financial worries and Claire’s well paid job. Andrew then instructs the solicitor to prepare the Will with the majority of the Estate passing to Bertie because Claire is more financially secure. While Andrew has testamentary freedom and is completely entitled to do this, Bertie’s comments could potentially be seen as undue influence. As Bertie is present at the meeting it would be difficult for the solicitor or legal executive to fully explore this with the client.
It is also important for solicitors to be conscious of potential undue influence between couples. One of the partners may have a dominant personality or be more involved with the finances and therefore makes decisions on behalf of them both which the other may feel unable to contradict. It is vital that although they may be a couple, the solicitor ascertains both clients’ instructions and acts in both of their best interests. If this is not possible, then the solicitor may have to stop acting.
The "STEP" Code
The Society of Trust and Estate Practitioners (“STEP”) Code for Will Preparation in England & Wales is a set of ethical principles which exist for the benefit of clients and must be adhered to by all STEP members that advise clients in relation to Wills. Many of our team are members of STEP and we adopt the principals of the Code into our interactions with clients. The Code is clear that the solicitor must endeavour to ensure that no member of the client’s family or a beneficiary is present at the meeting. If this is not possible then the solicitor may not be able to proceed.
If you are insistent on a family or friend being present and the solicitor or legal executive chooses to proceed, then it is possible that the terms of the Will could be challenged. The lawyer will make a contemporaneous note of the meeting and specifically include details of any participation by the family or friend in the meeting. The Law Society Wills & Inheritance Protocol states that the lawyer must stop the meeting and refuse to act if there is evidence of undue influence.
Please do not be offended if your solicitor asks to see you alone while your family or friend remain in reception. We are simply following the recommended guidance and ensuring the best possible service for you as our client.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
