Should solicitors take instructions or advise?

On numerous occasions people, have come to an initial appointment and simply told me exactly what they want in their Will. Often a client will come with pre-conceived ideas due to something they have read in a newspaper, someone they know who has had a bad experience, or a family member has suggested they do something.

There can be concern that a previous Will simply doesn’t suit a person’s circumstances and, with contested probate claims on the increase, it is clear that this may arise if the time hasn’t been taken to ‘get to know’ the client.

The risk with DIY Wills is that people often receive no advice and so are not even aware of the options available to them or if the Will they have written is workable. However, there are professionally drafted Wills that also fall short.

People’s lives are becoming increasingly complex due to longer life expectancy, finances, family relationships, geographical variations, care and living arrangements. This is further complicated by the range of ever evolving products and services available to people. These are all issues a solicitor should be considering when providing advice to their clients.

Solicitors should not accept a client’s final instructions without asking about their life, their family, their finances and future plans. It is only in this personal discussion, which can often take the form of a general chat, that additional possible issues are brought up that may sit uneasily with the instructions provided.

It may be that in the course of the discussion you discover an undisclosed family member, who could potentially have an Inheritance Act claim, a potentially large liability to inheritance tax where the client would benefit from financial advice prior to making a Will or an informal family agreement, possibly in relation to living arrangements, which could undermine the contents of the Will. Furthermore, a client may realise that their main concern is actually their health or they are struggling in relation to a certain aspect of their life.

If clients are not aware of potential issues then they cannot make a decision as to whether they wish to address them or not. I often have clients who state that they want a simple Will, but when you discuss their circumstances it becomes apparent that a trust may be beneficial to them. A common reason that they fail to consider a trust is because they think that trusts are only for ‘rich’ people. By taking the time to know your clients, you can assess whether a trust may be relevant and advise them on it, which allows them to make an informed decision and alter their instructions as a result.

There should be no generic instructions or Will and it is essential that solicitors ‘get to know’ the individual and ‘advise’ them – not just in respect of their Will, but additional considerations, such as the possible impact on their company, their property or Lasting Powers of Attorney. Also, is there any support available to them -a charity or organisation that may assist in an area the client is concerned about?

As solicitors, we all have a legal duty to our clients to advise them but I would like to think that we all have a moral duty to ensure that our elderly clients make informed decisions.

Sian Mills is the Private Client partner at LG Williams & Prichard solicitors and a member of SFE. She is proud of the firm’s caring and personal approach to their clients. Sian believes strongly that it is important to offer continued support to her clients in all aspects of their lives.

LG Williams & Prichard are one of the oldest firm in South Wales with its origins in the 1850’s. The firm offers a complete legal service to its clients thanks to the diverse areas of law that the four partners specialise in. Together with a strong team of solicitors, trainee solicitors, paralegals and support staff, they are dedicated and committed to providing the best service to their clients.

http://www.cardiff-law.co.uk/