Solicitors Advised to Film Clients Making Their Will to Prevent Disputes, KC Recommends
At the Law Society’s annual private client conference, Constance McDonnell KC of Serle Court Chambers, an expert in Trust and Probate disputes, recommended that solicitors consider filming clients while they make their Will. This suggestion was made during the opening plenary session on dispute resolution, attended by a full house.
McDonnell highlighted that although Wills are sometimes drafted for very low fees, the duty of care owed to clients remains unchanged. “Videoing the event is a very cheap way of recording what happened,” she stated. Such recordings could serve as valuable evidence in court, providing clear documentation of the will-making process.
She acknowledged potential pitfalls, recalling a case where a layperson filmed the testator and “you could see the lady’s eyeballs moving because she was reading something.” Nonetheless, she emphasised the increasing comfort many clients have with being on camera in the digital age.
Case of Disputed Will Highlights Importance of a Non-Provision Clause
In a related matter, five granddaughters, who were handed just £50 each from their grandfather’s £500,000 estate, were ordered to pay £220,000 in court costs after losing a legal battle. Frederick Ward Snr, 91, had cut out his late son’s children due to their ‘very limited’ contact with him, instead splitting his estate between his two remaining children, Terry Ward and Susan Wiltshire.
Upset at being excluded, the granddaughters claimed their uncle and aunt had unduly influenced their grandfather into changing his Will. However, the judge ruled that it was ‘entirely rational’ for the disappointed grandfather to cut them out due to their limited contact.
The granddaughters were ultimately ordered to pay substantial court costs, with the judge emphasising that Frederick Ward Snr was an ‘independent and strong-minded’ individual who had the right to distribute his estate as he saw fit.
The Role of a Non-Provision Clause in Resolving Disputes
The above case illustrates the complexities that can arise in Will disputes. In addition to video recording, incorporating a non-provision clause can be a proactive measure to address potential conflicts.
A non-provision clause explicitly states the reasons for excluding certain individuals from the Will. This clause can provide clear evidence of the testator’s intentions and rationale, making it more difficult for excluded parties to claim undue influence or lack of capacity. An Expression of Wishes can assist with this too. The non-provision clause and an Expression of Wishes are available in Arken Professional and can be used together. The clause can be used to record notes against the file to keep a record of why people are given/not given bequests under a Will and the Expression of Wishes can explain in greater detail.
By clearly documenting the reasons for their decisions—through video recordings, non-provision clauses, and detailed Expression of Wishes—Testators can help ensure their wishes are respected and reduce the likelihood of costly and emotionally draining legal battles.