Golden, but tactless

Golden – but tactless.

If you are making radical changes to your will and you are of advanced years, or have a history of mental illness (which includes strokes and tumours), please do not be offended if your solicitor explains that they would like to consult your doctor.

The solicitor (and this includes members of the Society of Trusts and Estate Practitioners) is trying to do the best for you. This means that they are trying to make sure not only that your will is drafted following your instructions, and executed in accordance with the formalities, but that it will stand being tested at a later date.

People who are disappointed at being left out of a will do sometimes allege that the person making the will did not know what they were signing – this could mean literally – the person did not understand the English language, could not read through blindness or partial sight, or were deceived in putting their signature to the paper in front of them. Or it could mean a deeper sense of understanding – that the person signing the will did not have the necessary mental awareness to be able to make a will.

In such cases, the law states that the solicitor should obtain the professional opinion of a doctor that the person has testamentary capacity *at the time of giving instructions preferably* – and if they did not, the solicitor has to explain why not – and it is seen as a major blow to the will being proved if there is a reasonable doubt.

“ the Defendants have only themselves to blame for not having [the testatrix] assessed by a psycho-geriatrician in order to determine her capacity in May 2007. [He] accepted that he was aware of the golden rule for solicitors dealing with aged or seriously ill testators , viz. that it is best practice for the will to be witnessed or approved by a medical practitioner who ought to record his examination”

In the recent case of Catling –v- Catling, the judge was particularly scathing of the “professional” adviser (Mr Wallace) that assisted the late Mrs Catling in the preparation of her final will (executed in 2007).

In that case, Mrs Catling had ceased to use her solicitors of many years, who had prepared many previous wills for her. Those wills were very different from the last will that was presented to be proved. In earlier wills, Mrs Catling had treated her children equally. In the final will, she excluded all but her youngest child, Kevin.

The judgment does present many unhappy facts – it appears that Mrs Catling did make wills with her usual solicitor, but that he had found himself unable to continue to advise her because of the suggestion that she was being manipulated by Kevin and his wife, with whom she lived at the time of the will being made, Kevin’s wife being the main carer for Mrs Catling. Mrs Catling also made an Enduring Power of Attorney, which was registered in 2005 appointing that solicitor to be an attorney, but from which he retired, from a sense of being compromised.

It appears that the replacement for that solicitor was Mr Wallace. He was not legally qualified, having only completed a law degree and not completed any further training. He was also a trained builder and described himself as a student barrister – but it appears that Mrs Catling and her family believed him to be a barrister or solicitor and that their misunderstanding was not cleared up immediately. Mr Wallace had a set of terms of engagement that were onerous and not in Mrs Catling’s interest, and the will he drew up contained wide powers for him to charge fees for being her executor, and at the same time wide exclusions from liability and high charges for interest on unpaid bills.

Evidence given in the trial confirmed that once Mrs Catling had sold the house she lived in and moved to live with Kevin and his wife, the rest of the family were continually denied access to her – told that it was not a convenient time, or were unable to speak to her on the phone. This conduct had been raised with Social services,

The story transpires that Mr Wallace visited Mrs Catling between two and four times a week for about two years (that sort of attention is not necessary for making a will and quite unusual). He did spend time with Mrs Catling alone, but the instructions for a will appear to be sketchy, and show that Kevin was present at the time, and to have given subsequent instructions. Mr Wallace also appeared not to understand that there might be any impropriety in having Kevin present, or having Kevin give the instructions for the will. There appears to be no time at which Mr Wallace saw Mrs Catling independently of Kevin and attempted to ascertain her instructions. The time taken to complete the will from initial instructions to execution took some 16 months, which the judge found to be unreasonable, given Mrs Catling’s health and dementia (which may well have been apparent, since the Enduring Power of Attorney was registered in 2005 on her previous solicitor considering that she had lost or was losing the ability to look after her property and financial affairs)

A medical expert was appointed by the court to give evidence on whether Mrs Catling could have understood the earlier wills, made with solicitors, and whether she could have had the necessary mental awareness either at the time of giving instructions, or when executing the will. That expert drew upon as many sources of information as were available in order to come to his conclusion:

By May 2007 I consider that the testatrix was different from dementia of at least moderate degree. If the MMSE score of 4/26 elicited one or two months after she made the ~Will was a reflection of her cognitive state at the time she made her will, it is likely that she was severely demented and would, in my opinion probably not have fulfilled the Banks –v- Goodfellow test because she would have been unable to exercise judgment in assessing the competing moral claims of her eight children for her bounty. It is also probable that she would not have been able to appreciate the extent of her estate. However, it is also possible that delirium, contributed to the low MMSE score in June or early July 2007 and that her score might have been higher in May. I do not consider it safe to presume that the testatrix did have the capacity to make a will in May 2007. Nor do I think that she would have been able to recall that she was making a will drawn up on her previous instructions”

In his concluding words, the judge not only came to a decision on the mental capacity of the testatrix based on the expert evidence, but stated that “this conclusion is reinforced by the Defendant’s failure to follow the golden rule”

Section 9, Wills Act 1837

9 Signing and attestation of wills

No will shall be valid unless:

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either

(i)attests and signs the will; or

(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.]

Watts Fair – and what’s legal.

The Inheritance Act Claim –v- the forgery

Watts-v- Watts [2014] EWHC 668 (Ch)

It’s been in the news recently – the Daily Mail and the Telegraph making reference to a daughter challenging her mother’s will so that she could receive a benefit – because the daughter was not working and her brother (who got everything under that will) alleging that she was waiting for her mother to die so she could pay off her debts. Christine Watts, (according to her brother’s barrister) has “done nothing to get a job” since 2005 because she expected to be rescued by a share of her mother’s £200,000 estate.

It sounds like another case of a hardworking son who did everything for his Mum, staying by her bedside through to the bitter end – and a daughter who was workshy – and just waiting for Mum to die, and not putting in the effort to get a job or to visit her mum.

One side of the argument is that Valerie should have made a will leaving something to Christine – the other side of the argument is that the 2011 will is a forgery: that it was not signed by Valerie, but by Christine’s brother Gary, who thought he was entitled to have something, and that the witnesses were either lying or duped into signing something that was not a will, and not in Valerie’s presence.

However, reading the judgment of the case reveals that it is not as simple as this: what emerges is a story of considerable sadness, combined with a certain amount of greed and a casual approach to the law. It also transpires that the “deserving” son was in fact also receiving benefits – the judgment reports: Gary freely admitted to working only 16 hours per week ‘because’ that was the most he could do without losing his benefits

Mrs Valerie Watts (Valerie) had adopted two children – a daughter (Christine) and a son (Gary). She had made a will in 2009 and another will in 2011. In her 2009 will, she left her assets to be divided equally between the two. By 2011 she was very ill with terminal cancer. She made a will on her deathbed, leaving everything to Gary. The judge observed that Gary was, indeed, an attentive son, being present at the bedside.

Reading the judgment, the reader is transported back to the scene in the hospital and the way that it was described in court some years later. It appears that Valerie’s sister, Yvonne was asked to get a will from WH Smith and wrote the will for Valerie. Yvonne received nothing under the will and was one of the witnesses. Somewhere along the line, it was realised that Gary could not be a witness as well, and he went out to the nurses’ station and coerced one of the nurses into the room. Although the nurse made it clear that she was unable to witness wills or official documents, as she was not permitted to under the terms of her employment, she was assured that she would not get into trouble. She was not told that it was a will.

At no point whilst she was in the room did Valerie say anything at all, being in a drowsy state, capable of being roused if someone needed to speak to her. She was very clear that she did not witness Valerie sign the will or any document, but she did see Gary sign the document. She did not read the document before signing it. After Nurse Brown signed the document Gary thanked her and she left. She did not see Yvonne sign the document.

It is on the basis of who is most believable that the judgment of this case hangs – Are the formalities of the will signing complied with? – ie, did Valerie sign this will? The judge thought not, on the balance of what she heard.

I prefer Nurse Brown’s evidence to that of Gary on the question of what he told her at the nurses’ station. I accept that he did not ask her to come and witness his mum’s signature. I accept that he invited her into the room by saying that his mum needed something. Nurse Brown was not told that she was witnessing a will by Gary or, I find, by Yvonne. As a matter of law, this does not matter: Smith v Smith (1869) LR 1 P&D 143. I find that she did express her inability to sign any official document to Gary and Yvonne in Valerie’s room, and that she was reassured by Gary that what she was signing would not get her into any trouble. That is why she signed it. She was misled by Gary. Had she been told it was a will she would not have signed it, being a conscientious professional who would not knowingly disobey this important rule laid down by her employer. I find that she did not realise that it was a will until Gary visited her in St Thomas’ in October or November 2011. That visit was an attempt by Gary to influence what Nurse Brown would say

And then ruled that the earlier will would stand.

I have taken into account that it is entirely possible that on 12th January 2011 Valerie might well have wanted to change her will to cut out Christine. If that were indeed the case it is clearto me that neither Gary nor Yvonne would then have discouraged her, as in my judgment Gary had developed a sense of entitlement which he displayed in the witness box and Yvonne, who never got on with Christine, shared his view. Nor do I have to decide whether Valerie could not, at the last moment, bring herself to complete the act of cutting out her daughter or was physically too weak to sign. The decision which I have come to is primarily based on my assessment of the evidence given by the three witnesses of fact, and has taken into account my views of the respective strengths of the opinion evidence given by the expert witnesses.

There are two sides to most stories – and unlike the media, the judge was not impressed by the story of the son, to the extent that it would overlook forgery. The court was sensitive to the nature of the relationship between mother and daughter and to the daughter’s very real medical issues, not drawing the inference suggested by the media reporting during the trial.

This case, far from being about a grasping daughter who did little for her mother but waiting for her to die, is all about the actual legal formalities of signing a will and why they are there and need to be complied with – the real reason why there are two witnesses.

Solicitors are fat cats. They deserve to be undermined…

The reason I became a solicitor is nondescript and boring – it seemed like a good idea at the time. Frankly, I have become more cynical, but strangely more idealistic as I have grown older, and seen more. That strange principle, of what it means to be a professional, separates me from those whose only motive is to make money – with no overwhelming and overriding principle of responsibility.

Perhaps it is being a parent. Or perhaps it is having the knowledge that you are told so much in confidence, in complete trust, by people who are vulnerable by imparting such information, let alone by the circumstances that brought them to you. You are the last bastion of truth and honesty before the marketers get their way.

But we are also businesses – we no longer have a monopoly of being service providers. And I am told that this is because solicitors are fat cats (don’t make me choke, if I rented a house I would be on housing benefit and that would bring in more). And because solicitors are the establishment. Such establishment needs competition. Competition is good, competition makes us thrive.

Except, it is not a level playing field. There are some activities that are not restricted to solicitors only – activities like will writing and estate management – both of whom I would suggest do ask for a high level of trust and confidence not only in the skill concerned, but also in putting the customer first. There is a huge amount of regulation that a solicitors firm has to comply with, not only in relation to client money, but also in relation to good behaviour of the individuals (outside their working hours) and there is a standard by which they can be judged – even passing the standard by a very small amount does not mean you have come away looking good – being called to account in itself is potentially damaging, and something that most law firms will try to avoid.

All modern law work is about risk assessment for the solicitor – either risk of getting it wrong, risk of appearing not to do the right thing, risk of overcharging, risk of having a complaint made against you. And that’s all well and good – we should be kept on our toes. But… here’s the rub – not all people providing legal services are bound to the same standards. If you choose an unregulated body to do the work for you, then you may be in the unfortunate position that you cannot complain that the charges are too high (look in the small print of the glossy charges brochure) or that the service is too slow (who are you to say what is slow?) or that you think they have not done their best to sell your auntie’s house – they virtually gave it away – it was worth far more! or that they never kept you informed (after all, you are the one that gets the proceeds of the estate in the long run.

How is it that unregulated companies manage to sell their service in this way, calling themselves “almost solicitors” and yet are not obliged to abide by certain professional standards? Everyone from the establishment agrees on how to play fair, and makes an effort to give the customer the benefit of the doubt in all things, and yet…

Is it the pricing? Solicitors have been charging by the hour for a long time – because that is one of the ways of working out how long something will take – how much work you have to put in, means the fee is commensurate with the job concerned. Solicitors should give an indication of how much it is likely to be for each stage of the work – there is an estimate of costs for you.

Would customers prefer that every little detail is written down and added to the bill? So that they know the price of every single step? Having recently seen the third party disbursements brochure for a non regulated business, I can see all sorts of things that I just bundle into the price of doing the job. And consider them essential in order to do the correct job for the client. There is no way that I could cut the corner, then blame the client on the basis that “you didn’t want me to do that search, so I didn’t do it, and lo and behold, look at what a pile of mess you are in”. The search is an essential part of the transaction, without which you have not correctly advised. Interpretation of the search is my job, and advising on it.

What is it like for the customer? Do customer’s seriously like a contract that is followed by pages and pages of sub-costs for this that and the other? Trouble is – if you are paying for work from an unregulated body, you can’t complain anyway! How is that remotely fair for the public, who can’t be expected to know what sort of expenses are involved. If replacing the engine oil is a necessary part of my car service, as the current oil is drained to reach the part that needs replacing, am I happy with the thought that the service is £200, plus oil drainage fee, plus environmental disposal fee, plus 6 litres of fresh oil, plus an oil gauge testing fee? (you can tell I know absolutely nothing about how much oil is needed for a car… You might as well charge me the amount it will actually cost you, rather than adding on spurious details that make it seem like you had to do more…

*cough* This has turned into something of a rant. Partly because it seems so damn unfair – how does the public know what they are buying? And how do they know the difference between a regulated person and someone who is not? How do they have any idea of how vulnerable they are, if the service is not good, or the product is substandard? To whom do they turn? Just have a quick word with the Legal Ombudsman, as I did, and you will find that they cannot be turned to, if the will writer is not an “approved person”.

Being a solicitor is for me about trying (I am human, so I fail, hopefully not too often) to do the right thing, the legally correct thing, and to use the law to protect and serve the interests of those who do not know the law, but have other excellent reasons for needing assistance. When I come up against people whose main ethos is to make money and to push customers in at one end and relieve them of their money at the other end, without regard for the actual person, that offends me. I told you I have got more idealistic as I’ve had more experience…

Unexpected – There may be Trouble Ahead

Today I discovered that a man who I had been pursuing gently with a view to making this new will had died, unexpectedly [1]. Not after a long illness, where one might expect to have time to make preparations, but suddenly. Not in the first flush of youth, certainly, but in the prime of working life – when one might be looking forward to retirement, but not there yet.

He leaves an old will, adult children and an ex-wife. And he did not want to spare the time from his busy schedule to make a will.

Which leads me to the thought that when making wills, it might be something that could be reviewed regularly – like getting your car serviced – and if you do this regularly, death might lose some of its sting, becoming something that is routine enough to be dealt with and put aside, rather than imbued with fear.

And that if you review the documents regularly, then if the unexpected should happen, you are in the right place – prepared.

[1] he had approached me first, but then had been busy, then on holiday, then busy…