Pitfalls and devices: A sole practitioner’s view on how to avoid claims on your indemnity policy

All practitioners will have their own thoughts on this subject. Jennifer Margrave – recently given the Law Society lifetime achievement award for private client work – indicates the basics in practice. Readers are welcome to drop a line to ECA with their own views.

This short article is designed not to reiterate the normal client-care rules with which all should now be familiar, but intended to take the next step. What devices can the solicitor use to ensure compliance with the Law Society’s rules and also to avoid negligence claims later on? It is designed to give some guidance on what should be in the file to assist the lawyer to rebut negligence claims in the worst event.

Attendance notes

The idea for this article derived from the following sentence in an attendance note in a will file that I had to obtain from another firm of solicitors after various allegations of undue influence, mental incapacity and other legal concepts, including proprietary estoppel, were raised by those not named in the will after the death of the testator: “Despite having Parkinson’s it is obvious Miss Smith [i.e., anonymous] has mental capacity.”

The note then gave details of how the will, one of several made, was to be changed. No record that there were several other wills, no record of why the change was being made now, no details of the new beneficiaries. The note was not very helpful to our negotiations with the various contending parties.

I would ask a simple question: is the client’s mental capacity really obvious from the above note?

When preparing attendance notes, for whatever reason, as much information should be included in them as possible. Always have in mind the question of mental capacity. Record mannerisms, information given and received and any question and answer sessions to show that your questions were not leading. This will help establish that the criterion for mental capacity has been satisfied.

How does one define mental capacity? It should already be appreciated by those dealing with the elderly that it is a legal concept that a solicitor can have a reasonable hope of determining but upon what evidence?

Law Society advice is to obtain a doctor’s report if in doubt, but if, after interviewing a client, there is no doubt, and it is “obvious” (as declared above), on what grounds have you, the adviser, made that decision?

Attendance notes, therefore, are vital to avoid future claims against the estate. Yes, it takes time, it might take a great deal of patience at the meeting to talk with the client, and it may tax the strength, but it has to be done.

The fact that the solicitor has advised the client has to be recorded. The advice given has to be recorded. The fact that the client understood that advice should be recorded.

It is no good saying that the client was deaf so could not be questioned about their motives for making the current will as a way has to be and can be found to communicate with that deaf person.

Time savers

(A) Questionnaires

There are some tools that can be used to assist in the time-consuming need to record information. Consider sending a questionnaire to the client, so they can complete basic details of the names and addresses and relationship of the proposed beneficiaries; the names/addresses of executors; and a short résumé of the nature and value of their estate;
This questionnaire should ask if another will has been made;
My firm’s questionnaire asks them how they heard of the firm. If it is a personal recommendation, time is found to ring the person referring, whether accountant or other solicitor or another client, to thank them for the recommendation and also ask them how they know the prospective client. If they say through a special company pension fund pensioners’ club, for instance, a note can be made on the file. Such detail may be of use at some later date;
Presenting the questionnaire at the interview not only saves time – you do not have to make notes about names and addresses of executors, for instance – it can also give you vital clues as to the capacity of the person. For example, if they have not completed the addresses, is this because they have forgotten them? Is this because their memory is fading? If they have not completed details of their assets, is it because they do not know what they own, and why not?
The questionnaire can act as a springboard to ask further questions about their affairs. One client I dealt with called himself “Major” and as he was in his 80s I asked questions about this. He then gave me graphic stories about his experiences in the Second World War (fascinating) and his war wounds. When he died, it was possible to claim IHT exemption because his death was as a result of those war-time injuries that he had so wonderfully told me about. It was also obvious from the note I had made that he had mental capacity;
The questionnaire we provide also asks whether there are stepchildren. This gives a clue as to whether there is a second marriage in place;
The questionnaire is then used as evidence of information provided by the client. If they have called someone their niece and they are not really a blood relative, and they never explain this, although the niece is the main beneficiary, at least you have external evidence that the client treated that person as a niece, despite the lack of blood relationship. In short, the time saved in asking questions can be used to find out more about the client, assessing all the time their responses and capacity.

(B) Set process

Attendance notes are boring to dictate or write and take a long time. They also clog up the typing process. A way of streamlining them is to have printed formats on computer, with at least basic details at the top of the form to be completed with each name, date, matter number and subject matter. For Court of Protection matters, a specialised attendance note for perusing, research and other matters can be prepared where the appropriate box is ticked and the time units added at the bottom; the subject matter only is then added. Despite the time taken they are vital. They could avoid a claim for negligence, especially where disappointed beneficiaries see no reason why they are left out of the will. A detailed attendance note, not only setting out what the client wants to do, but why, and the background to that decision, can save you;
It might be a good idea to send the initial attendance note to the client with the next letter, to confirm what has been said and agreed. Sometimes this might result in further dialogue where the client, having seen his thoughts in black and white, has a change of heart. Be aware, however, that the client has told you information in confidence. Consider if someone else might see the document, with all the defamatory information the client has told you about various relatives and the reasons why those relatives have been left out of the will.

And finally…

Once the will or any other documents have been completed and stored in your safe, keep a copy of the attendance note with the will in case it is ever needed. For instance, if the client keeps on making wills with different solicitors, if you send the will with the copy attendance note, to the next firm, this might raise alarm bells for them.

Jennifer Margrave is a solicitor in Guildford, England, specialising in advising the elderly and their families. Sha can be contacted by telephone on 01483 562722 or by e-mail at: margravejen@compuserve.com