Solicitors duty of care

[Mal161]

Is there such a duty in respect of Will writing? Do the SRA have anything that they recommend solicitors undertake when preparing a Will, particularly for an elderly lady (92) whois taken to the solicitor by the daughter to have her mother make a new Will which makes her the sole beneficiary? Perhaps something similar to the Lasting Power of Attorney, where the 'provider' needs to establish that the donor is not being deceived or tricked into doing something she does not understand or into believing is an improvement on an earlier Will because of false statements by the daughter to cut out earlier family beneficiaries?

We often hear of cases where family members take advantage of parents, particularly where money in the estate is concerned. So many times Wills are challenged because of such, but appropriate questioning may be a way of avoiding these cases and it could begin with all Will writers and Solicitors being legally obliged to question the donor, in private, when they are looking to make a new Will. What do solicitors do to try and safeguard against this and do he SRA really care about it?

[PallasAthena]

The short answer is that solicitors certainly have a duty of care to their client, must be alert to the possibility of undue influence, and must retain records of their discussions including around issues of undue influence and being satisfied their client has the (legal) mental capacity to change the will.

Failure to do that could result in claims against them for professional negligence and/or regulatory action.

I imagine more detailed guidance exists but I've not seen it, someone here might be able to point you in the right direction.

Being persuaded by a family member to change your will in their favour is not automatically undue influence though.

[Mal161]

The person in question was still capable, but had been persuaded to make changes base on a promise that the distribution of her estate would not change from the earlier Will but was only to make management of the estate easier for the daughter to administer as an executor She therefore made the Will knowing what she was doing, but based on the understanding that her estate would be split equally between the two daughters, as in the first Will, which specified 'or issue'. At the time the new Will was written, the older daughter was terminally ill with cancer and not expected to live for very long, but the mother was persuaded to make the change in the knowledge that her grand children would receive their mothers inheritance. As it happens, the older daughter died some 6 weeks later and I, as the other executor, knew nothing of the new Will until my Aunt told me when I telephone the day she made the new Will