Posted On / 01.11.2020

Taking Will instructions

Taking Will instructions from clients can, on occasion, be very straightforward. They know exactly what they want to do, their circumstances are genuinely uncomplicated and therefore their Wills are simple in form.

However, often the initial meeting with clients to take instructions turns into a friendly interrogation by the solicitor as they attempt to coax out all the important and necessary information thus allowing them to build up a fuller picture and establish the wider consequences of the Will being prepared. Clients are usually convinced at the outset that their Will is going to be really easy, and that their instructions will definitely not require a more complicated and costly Will. During the course of the initial meeting, expectations sometimes need a little revision.

Unfortunately, few clients really ever fall into that simple uncomplicated box. At the initial meeting, I will work through a series of questions to fact find what areas require more careful thought and more probing questions. It is often the follow-up question in response to the client’s answer that is most important.  By the end of that initial meeting I should have all the necessary information to enable me to prepare draft Wills and the client(s) are seeing their instructions perhaps in a different light to those they had originally intended to give me.

Here’s a typical conversation that I will have with clients that often raises an eyebrow or two:

Me: “So Mr and Mrs Smith, is your property Primrose Cottage held jointly between the two of you?”
Clients:“Yes, we both own it.”
Me: “Now this may seem a silly question but I promise you it’s not, do you happen to know perhaps how you own the property jointly? Is it as joint tenants or as tenants in common?”
Clients: *confused faces*
Me: *proceeds to draw diagram and then explain how the property can be held jointly in two different ways*

Now this simple line of questioning can have huge repercussions on how a Will later operates in dealing with the main asset, the family home, on the death of the first to die.

If a couple own their property as joint tenants then regardless of any Will, on the first death the beneficial share will pass automatically to the surviving joint owner so that they then hold the property in their sole name.

The alternative is to own the property as tenants in common which means that each joint owner is deemed to own a distinct share in the property, usually 50:50 but sometimes in unequal shares, and at the first death this beneficial entitlement passes under their Will and not automatically to the other joint owner. The Will then dictates where the half of the house passes and whether this should be outright or maybe only in trust for the survivor. Sometimes, especially if a marriage or relationship is breaking down, the Will is altered to direct their share of the house to other beneficiaries entirely.

Not appreciating this crucial point about how the property can be held and therefore not reacting to “sever the joint tenancy” can lead to some disastrous outcomes at the first death as the property passes to the wrong person or maybe to the right person but in the wrong way!

This topic of conversation is especially relevant if clients are worried about potential care home scenarios for the survivor of them or if perhaps they have children from a previous relationship that they wish to benefit whilst also protecting the interests of the survivor. As such, more and more couples at the end of that initial meeting are now instructing me to prepare more complicated Wills to include something called a Life Interest Trust, to deal specifically with their share of the property.

For more information and advice on making a Will, please contact Adam Hillier on 01935 846165 or email adam.hillier@battens.co.uk 

View our Wills and Trusts services here.

Read related private client articles here.