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How Long Must A Solictor Keep Notes With A Will ?
Hi,
The notes made when solicitors drew up a will in 2003 were destroyed by that solicitor in 2010. The person making the will died this year & one of the sons is contesting the will.
How long should the solicitor keep the notes, and have they been negligent in destroying them before the person even died ? The son has always said he'd contest it though the solicitor wouldn't have known that.
Thanks
The notes made when solicitors drew up a will in 2003 were destroyed by that solicitor in 2010. The person making the will died this year & one of the sons is contesting the will.
How long should the solicitor keep the notes, and have they been negligent in destroying them before the person even died ? The son has always said he'd contest it though the solicitor wouldn't have known that.
Thanks
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Well while you are waiting for one f the experts, here's my six pennorth. if it was my will I would want any notes made destroyed anyway in the interests of clarity. They are not relevant, the will stands as it stands and any notes written regarding the making of it are not relevant IMO.
Can I ask why you think that the notes should have been kept and what use they would be?
Can I ask why you think that the notes should have been kept and what use they would be?
Hi woofgang,
We've been told that notes should include comments about the conversation when the will was made, something like "That could be a bone of contention, are you sure this is what you want ?" stuff that could be useful as the son's threatening court action. A couple of solicitors approached have said to not have those notes could be considered negligent. This was when we thought notes hadn't been taken, but now we know they were but destroyed years before the death, hence - how long should they be kept ?
We've been told that notes should include comments about the conversation when the will was made, something like "That could be a bone of contention, are you sure this is what you want ?" stuff that could be useful as the son's threatening court action. A couple of solicitors approached have said to not have those notes could be considered negligent. This was when we thought notes hadn't been taken, but now we know they were but destroyed years before the death, hence - how long should they be kept ?
My experience of having made a will with a solicitor is that the only notes that there were were the ones that we made before the appointment. The solicitor made the will straight onto the computer during the appointment and we took away the draft will to discuss in private. We emailed him back with minor changes then went in to sign the wills. There were no notes of any discussion, so I am a bit confused about why any notes should be kept. And yes the initial discussion did cover some issues which might be contentious.
BC should be here soon - he used to write wills for a living
but see here:
http://
It is er quite long - and my own view 6d-worth before reading is that notes are by and large useless because the will is the will
and it is not the will and the letter-to-aunt-margaret and that editorial in the Times....
but I could well be wrong
but see here:
http://
It is er quite long - and my own view 6d-worth before reading is that notes are by and large useless because the will is the will
and it is not the will and the letter-to-aunt-margaret and that editorial in the Times....
but I could well be wrong
When I had my will prepared by a solicitor there were definitely no formal notes recorded. When I later ran a will-writing business myself I prepared most wills largely based upon forms completed by clients but I would also have telephone conversations with them to clear up any problems. I never retained any notes (and I suspect that if I'd done so I might well have been in breach of my company's registration under the Data Protection Act).
The son can only successfully contest the will upon two main grounds. Either he must show that there was a fault with the will itself (rather than its content), such as proving that it wasn't properly witnessed, or he must apply to the Court of Probate to vary the terms of the will on the grounds that the testator failed to make 'reasonable financial provision' for him. (To do that he must show, for example, that he was financially maintained by the testator at the time of their death and that it would be reasonable to expect that the testator would want to continue supporting him after his/her death. It is most definitely NOT good enough simply to say "I was his/her son and therefore I deserve more than I've been given ". Testators have the right to exclude members of their family from their will (or to limit what they receive from it) and the Court of Probate will always respect that right unless the will fails the 'reasonable provision' test.
http://
The son can only successfully contest the will upon two main grounds. Either he must show that there was a fault with the will itself (rather than its content), such as proving that it wasn't properly witnessed, or he must apply to the Court of Probate to vary the terms of the will on the grounds that the testator failed to make 'reasonable financial provision' for him. (To do that he must show, for example, that he was financially maintained by the testator at the time of their death and that it would be reasonable to expect that the testator would want to continue supporting him after his/her death. It is most definitely NOT good enough simply to say "I was his/her son and therefore I deserve more than I've been given ". Testators have the right to exclude members of their family from their will (or to limit what they receive from it) and the Court of Probate will always respect that right unless the will fails the 'reasonable provision' test.
http://
Is it the notes that the Solicitor takes during the meeting you are talking about? If it is, they were probably kept in the file after the Solicitor dictates the drafting of Will. It would then be sent out to client for checking with explanations of any clauses which may cause contention. It would then be approved by client, engrossed by Solicitor and signed by client in front of a witness. In my work, once the Will is signed and witnessed, we index and store the principal Will. The file is marked "dead" and stored. Dead files are recommended to be kept for six years. So I can't see this as being negligent.
that's what I thought Chris, which kind of makes a nonsense of the Law Society's advice? Speaking as a customer, I regard conversations that I might have in such circumstances as confidential between myself and the solicitor and would be quite irate if the solicitor retained notes of those conversations without my knowledge and permission.
Thanks for all the responses :)
No one knew until a solicitor who may be acting in respect of the threatened court action recently mentioned there should be notes so no one gave permission for their destruction. The probate solicitor said earlier this year it was "an unusual will" (it basically allows the youngest son to live in the house for as long as he wants so the eldest - there's 4 - realises he probably won't live to see his share as it doesn't get sold & divvied up 'til the youngest wants to sell) but didn't mention notes. The former solicitor (plus another) said now there may be a case for negligence in which case they could be asked to pay the "defendant's" court costs. Academic really as there's no grounds for the case to be brought anyway (as per Buenchico's comment, tho' there are actually 4 main grounds apparently, but none apply in this case) !
The deceased was about 80 when she made the will & though she was definitely mentally astute, it's believed now there should've been notes along the lines of "I have made Mrs X aware of this" just to clarify certain things that may (& seem to have now been !) be misconstrued when the time came.
We've seen the Law Society blurb, all I could see quickly scanning thru' it, was a mention of 15 years. Can't see any point in destroying notes before the will comes into effect, especially now everything can just be scanned onto a hard drive. JMO.
Wondering if that makes sense ... :/
No one knew until a solicitor who may be acting in respect of the threatened court action recently mentioned there should be notes so no one gave permission for their destruction. The probate solicitor said earlier this year it was "an unusual will" (it basically allows the youngest son to live in the house for as long as he wants so the eldest - there's 4 - realises he probably won't live to see his share as it doesn't get sold & divvied up 'til the youngest wants to sell) but didn't mention notes. The former solicitor (plus another) said now there may be a case for negligence in which case they could be asked to pay the "defendant's" court costs. Academic really as there's no grounds for the case to be brought anyway (as per Buenchico's comment, tho' there are actually 4 main grounds apparently, but none apply in this case) !
The deceased was about 80 when she made the will & though she was definitely mentally astute, it's believed now there should've been notes along the lines of "I have made Mrs X aware of this" just to clarify certain things that may (& seem to have now been !) be misconstrued when the time came.
We've seen the Law Society blurb, all I could see quickly scanning thru' it, was a mention of 15 years. Can't see any point in destroying notes before the will comes into effect, especially now everything can just be scanned onto a hard drive. JMO.
Wondering if that makes sense ... :/
I am not sure why there should be a case for negligence? When you say "solicitor who may be acting", which side might she/he be acting for? If he/she is possibly acting for the contestor of the will, then it sounds like a fishing expedition.
The only possible negligence issue that I can see would be if the will is badly written ie, it could be read two ways and might not actually reflect the testator's wishes.
The only possible negligence issue that I can see would be if the will is badly written ie, it could be read two ways and might not actually reflect the testator's wishes.
The oldest son is threatening legal action so the youngest (my other 'alf) is looking for a solicitor to represent him. 2 of the 3 he's spoken to have mentioned this "negligence" thing. It's makes sense when you hear it said, I'm maybe not getting it across here very well. fadeout73's probably been closest with the explanation, but again, makes no sense to me to destroy them before the will's read.
The will isn't badly written, in fact some legal eagles have said it's a very good will, BUT it's also been said it's unusual.
The will isn't badly written, in fact some legal eagles have said it's a very good will, BUT it's also been said it's unusual.
i have been thinking a bit about this, from the point of view of a retired health professional who knows a bit sbout why professional keep notes. the usual reason, and, i think the reason here, is for the protection of the professional.
i see it this way. the will is written, its a sound will, signed and witnessed correctly and acceptable legally. anyone who wants to contest it will get nowhere....so, who else might be in the firing line to cough up some recompense? the solicitor who wrote it! so its to protect the solicitor that he/she will keep notes affirming that the will did in fact reflect the wishes of the testator and that any ramifications of unusual bequests or problematic wording were thorougly explained to the testator.
I dont think that negligence by a solicitor is immediately grounds to overturn a will (PP? Chris?) but substantial damages might be forthcoming
As i said, a fishing expedition....
i see it this way. the will is written, its a sound will, signed and witnessed correctly and acceptable legally. anyone who wants to contest it will get nowhere....so, who else might be in the firing line to cough up some recompense? the solicitor who wrote it! so its to protect the solicitor that he/she will keep notes affirming that the will did in fact reflect the wishes of the testator and that any ramifications of unusual bequests or problematic wording were thorougly explained to the testator.
I dont think that negligence by a solicitor is immediately grounds to overturn a will (PP? Chris?) but substantial damages might be forthcoming
As i said, a fishing expedition....
is the oldest bro comfortably circumstanced? i know from experience that this kind if legal endeavour is not cheap and if it does get to court and he loses, he risks paying the other side's costs as well.....of course if he is going after the solicitor who wrote the will then that may not involve you at all. i think you need to get some advice on whether or not there are grounds to overturn the will, if there are not, then i don't see why going after the solicitor for negligence would involve your oh at all.
woofgang, I think you were absolutely right.
Although, where you say "negligence by a solicitor is immediately grounds to overturn a will" - that's 2 different issues, not related at all OTHER than the negligence issue was suggested as a possible way of funding the defence of a court case where the eldest son is contesting the will. As I said, it's probably unlikely the case would go to court, & *if* it did, the eldest will almost certainly lose - he has NO grounds to contest it & his solicitor (who's in no way related to the will, probate, etc.) is regarded as only being interested in his fees - so he would have to pay all the costs anyway, we're told upwards of £50/60k.
There is, obviously, an awful lot more to this than I've said and although my oh knows I've posted here, it's not my place to go into any great detail, particularly when it isn't really relevant to the original question.
Oh, and it would be my oh's solicitor going to the "will" solicitor saying "you could be negligent / pay my client's fees / but you'll probably get them back as he'll win" :)
Although, where you say "negligence by a solicitor is immediately grounds to overturn a will" - that's 2 different issues, not related at all OTHER than the negligence issue was suggested as a possible way of funding the defence of a court case where the eldest son is contesting the will. As I said, it's probably unlikely the case would go to court, & *if* it did, the eldest will almost certainly lose - he has NO grounds to contest it & his solicitor (who's in no way related to the will, probate, etc.) is regarded as only being interested in his fees - so he would have to pay all the costs anyway, we're told upwards of £50/60k.
There is, obviously, an awful lot more to this than I've said and although my oh knows I've posted here, it's not my place to go into any great detail, particularly when it isn't really relevant to the original question.
Oh, and it would be my oh's solicitor going to the "will" solicitor saying "you could be negligent / pay my client's fees / but you'll probably get them back as he'll win" :)
Maybe I'm just being thick here then ... or tired ... why would a court, IR, ANYbody need paperwork before the testator dies ?? They're not going to know such paperwork even exists until AFTER a death, at the earliest ! And that could obviously be 10, 20, 40 years after a will's made.
"So 7 years should be more than enough time" - time for what ? Scan it, put it on digital media - forever ! Well, maybe for 7yrs after a death ... ;)
"So 7 years should be more than enough time" - time for what ? Scan it, put it on digital media - forever ! Well, maybe for 7yrs after a death ... ;)
In all the reported cases of negligence in Will preparation there are none that I am aware of which concern the destruction of a file.
It is common for will making notes to be kept by the draftsman. The very reason for this is so that if there is a challenge to the Will itself (ie on the grounds that the Will is invalid for one of a number of reasons or that the Will failed to record the testator's intentions as a result of a failure to understand his instructions or as a result of a clerical error). It is considered good practice (to the extent that the solicitor will be criticised by the Court if he doesnt) to provide details of the Will making process if the Will is challenged. See Larke v Nugus.
The problem I see with alleging negligence in this case by reason of the fact that the solicitor destroyed the file is where is the causal link between the loss to the estate and the destruction? It may well be that the challenge will come to nowt and that there will be no loss to the estate.
If the Will is being challenged on the grounds of poor execution - the attesting witnesses should be able to help. If the Will is being challenged on the grounds of lack of capacity or lack of knowledge and approval more than likely medical records will assist. Will making notes are always helpful but they are not the be all and end all. Many cases go to Court without those notes.
I think you should take specialist legal advice from a firm not related to the Will making process.
Chris, loathe as I am to correct you, you do not have to be financially dependent to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. As long as you fall into one of the categories in s2, you can make a claim and the first 4 (or perhaps 5) categories do not require financial reliance. See Illot v Mitson as a cracking example of a daughter who was not financially dependent.
It is common for will making notes to be kept by the draftsman. The very reason for this is so that if there is a challenge to the Will itself (ie on the grounds that the Will is invalid for one of a number of reasons or that the Will failed to record the testator's intentions as a result of a failure to understand his instructions or as a result of a clerical error). It is considered good practice (to the extent that the solicitor will be criticised by the Court if he doesnt) to provide details of the Will making process if the Will is challenged. See Larke v Nugus.
The problem I see with alleging negligence in this case by reason of the fact that the solicitor destroyed the file is where is the causal link between the loss to the estate and the destruction? It may well be that the challenge will come to nowt and that there will be no loss to the estate.
If the Will is being challenged on the grounds of poor execution - the attesting witnesses should be able to help. If the Will is being challenged on the grounds of lack of capacity or lack of knowledge and approval more than likely medical records will assist. Will making notes are always helpful but they are not the be all and end all. Many cases go to Court without those notes.
I think you should take specialist legal advice from a firm not related to the Will making process.
Chris, loathe as I am to correct you, you do not have to be financially dependent to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. As long as you fall into one of the categories in s2, you can make a claim and the first 4 (or perhaps 5) categories do not require financial reliance. See Illot v Mitson as a cracking example of a daughter who was not financially dependent.
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