We recently acted for a widow in the reported case, Eade v Hogg  EWHC 1057 (Ch); a claim for construction/rectification of her husband’s Will.
His previous will left 26% of his shares in a company to his surviving spouse and 26% to a friend. When the will was updated, it was redrafted so that it gave the executors power to appoint to the widow and his friend so many shares as, when added to their existing shareholdings, would amount to 26%.
The solicitor who prepared the Will was adamant that these had been his instructions despite there being no contemporaneous record of such instructions, and despite our client being equally adamant that her husband had not intended any change.
The Court rejected the evidence of the solicitor, described in the judgement as “evasive, equivocal and frankly unsatisfactory”. The judgement endorses a generous approach to interpretation and the scope of statutory rectification and is notable for the comments on the importance of preserving proper attendance notes.
Ultimately the case was decided on the contemporaneous evidence that was provided by the widow and the contemporaneous evidence (or lack of) by the solicitor instructed to prepare the Will.
The judgement found in favour of oral evidence of the widow and commended her contemporaneous written records and notes, which were detailed and displayed a considerable attention to detail. In contrast the solicitor’s evidence was considered deeply unsatisfactory partly based on his evidence not being supported by contemporaneous documents.
The solicitor failed to provide a written attendance note of his meeting(s) and failed to confirm the instructions given by the widow and the Deceased in writing. This would ordinarily be a faux pas, but was accentuated by the age of the testators especially considering the inheritance tax advice being provided.
The solicitor’s failure to make a written record of his instructions was contrary to the Law Society’s Wills and Inheritance Protocol as was his failure to send a copy of his instructions for the Will as agreed at the meeting or a letter with the draft Will to explain its effect.
The judgement rebuked the solicitor for his failure to follow the golden rule notwithstanding the testator’s age and frailty which once again proves that solicitors should opt for a cautious approach and consider not only obtaining a certificate of capacity in advance of the Will being signed but also the possibility of the Will being witnessed or approved by a medical practitioner, who should be completely satisfied that the client has testamentary capacity.
During cross examination, the solicitor acknowledged that he had taken instructions from the widow concerning a specific term of her husband’s Will without corroborating those instructions with the testator. It remains essential when taking instructions that a solicitor ensures they have the approval of their client directly. It is simply not acceptable to rely on instructions from a third party.
There was no discussion nor record of the reasons for the previous Will and suitable explanations for why the testator had apparently changed his mind. Unfortunately, this catalogue of failures led to the solicitor failing to deal with the client’s instructions correctly.
The case, whilst notable for pushing the boundaries of statutory rectification of wills, should act as a lesson to all solicitors (not just those involved in Will drafting) to ensure that their files are managed correctly with satisfactory notes recording a client’s instruction.
Detailed attendance notes can be a saviour for solicitors; a lack of attendance notes can be their downfall.
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