Planning Appropriate Life Interest Wills For Second Marriage Situations

Ralph Ray's article (Volume 1 Issue 6) raises some interesting points on "good practice" and it may be helpful to look at possible areas where complaints could be raised by disappointed beneficiaries (who are only too alert these days to demanding higher standards of expertise by solicitors and other professionals).

Ralph refers to conflicts of interest but in the context of conflicts between the second wife and the children of her husband's first marriage. Clearly advisers need to be aware of the problems that can arise and, in appropriate circumstances, of the need to recommend separate advice for those with conflicting interests. Failure to recognise and warn on such situations can represent inadequate service for solicitors.

The importance of nomination of pension funds is highlighted by Ralph and the importance of a pension scheme as one of the main assets of value in a person's Estate cannot be over emphasised. This is especially so because of the freedom from tax treatment of nominations which are in the discretion of the pension fund's trustees. Clearly a copy of any such nomination should be kept with the client's Will together with other relevant papers.

This leads on to the point which is mentioned on several occasions regarding the letter of wishes, Although this is not legally binding practitioners know how important this can be and how helpful it is to the Executor/Trustee in carrying out the deceased's wishes. This can also be highly relevant, as Ralph mentions, in dealing with the claims of the ex-spouse and her exclusion from benefit under her former husband's Will thus enabling the Executor/Trustee to defend a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

As Ralph says there is no such thing as a standard Will and the tailor made bespoke product is essential.

Practitioners may not be fully aware of the relevance in such cases of the decision in Larke -v- Nugus which is a Court of Appeal decision of 21st February 1979. In that case the Will was disputed by pecuniary legatees (niece and nephew of the deceased) on the grounds of undue influence and that owing to the testatrix's state of health she was unaware of its contents.

The defendant's solicitors made several requests to the Executors (one of whom was a solicitor) for a copy of the Will and a statement of the solicitor's evidence regarding its execution of the circumstances surrounding it. This was in accordance with the Law Society's recommendations to solicitors that, where there was a serious dispute as to the validity of the Will and where the solicitors knowledge made him, a material witness.

The Court of Appeal made it clear that the Law Society's recommendation was that in litigation over a Will every effort should be made by the Executors to avoid costly litigation and where there were suspicious circumstances surrounding the making and execution of a Will it was right that full information should be given to those attacking the Will as to how the Will was made and the circumstances in which instructions were given.

The Court described these as being more important than information as to the formalities of that testation. In such circumstances the solicitor was recommended to make a statement of all such evidence as he could give extending to all the surrounding circumstances leading up to the preparation and making the Will.

The relevance of this is that practitioners should be very careful in taking notes of matters which could influence the execution of the Will (hence the relevance of letters of wishes in such circumstances). Failure to do so could represent inadequate professional service for which they could be subject to sanctions through the Law Society Office for the Supervision of Solicitors.

As a footnote Ralph refers to the choice of Executor/Trustee where there could be a conflict of interest between the second wife and the husband's children by the first marriage as Executors. He suggests that the second wife should be one of (say) three Executors/Trustees. It has often been the practice in the past to suggest that the family solicitor should be the third trustee as he/she knew the testator's wishes and could "hold the balance" between the second wife and the children of the first marriage.

This very sensible practice has to be balanced against the belief of lay Executors/beneficiaries that the appointment of solicitors as professional Executor is undesirable because it gives the solicitor the power to raise extra charges for administering the Estate. Clearly if the solicitor's basis of costing is clearly explained at the outset in accordance with the written professional standards this problem will not arise. It is worth mentioning the point so that solicitors can discuss and consider this with the testator and, following his death, with the Executors at the earliest possible opportunity to prevent problems arising.

While these views are based on my personal experience of matters arising at the Office for the Supervision of Solicitors and from the various Probate Roadshows they represent my personal views rather than the official policy of the Law Society/Office for the Supervision of Solicitors.

Richard M Peel, Client Relations Officer, Office for the Supervision of Solicitors