Lawcovernotes December 2017

13. It is not uncommon for beneficiaries to assert that the will does not reflect the testator’s intentions, usually when they have inherited less than their expectations. Solicitors have a duty not only to the testator, but also to the beneficiaries and the merits or otherwise of any such claim needs to be established. By the very nature of the matter, this issue cannot be clarified with the client at the time the loss is alleged to have occurred. The terms of the will may not be called into question until well after the drafting. This may be complicated further if the solicitor responsible for the drafting is no longer available or has limited recollection of the instructions. The importance of detailed file notes should not be underestimated in these situations. File notes should be comprehensive, contemporaneous and should include the client’s clear instructions. The testator should also be asked to read through the completed draft will and confirm that it represents the testator’s intentions. This too should be recorded by way of file note, so that if the will is subsequently challenged it may be objectively established that it did indeed represent the testator’s intentions. The underlying cause of a number of claims in this area comes from lack of supervision. In some cases, the will has been drafted by a junior solicitor without adequate supervision. Not only is supervision a requirement under the Australian Solicitors’ Conduct Rules , it is also good risk management. It is important that all employed solicitors are adequately supervised throughout the drafting of a will (or any matter) and that the will is reviewed and authorised by a senior practitioner before being presented to the client for execution. Relationships between family members often change over time and a solicitor is not always aware of this when a testator requests to make certain changes. This is particularly relevant if the solicitor is not familiar with the client. It is not uncommon to see a situation where a beneficiary has predeceased the testator. In these circumstances the deceased’s beneficiaries’ share of the estate goes at law to the beneficiaries’ successors. This can lead to difficulties if, for example, a testator does not have a good relationship with the grandchildren, who are the children of the beneficiary who has predeceased the testator. Accordingly, when updating a will it is important that the testator’s intentions are again clarified and that the testator understands the impact of any changes. Clarifying the testator’s intentions and taking simple steps throughout the course of a matter can help minimise the risk to the client and the solicitor and avoid problems later. Emma Griffith Claims Solicitor When changes occur, clarificationmust be sought.