In continued partnership with Paragon, Beale & Company Solicitors LLP – who provide specialist legal advice to the legal sector – have produced a whitepaper exploring the impact of the pandemic with Private Client Work.
As with many areas of legal practice, private client work has always been vulnerable to client complaint and, on occasion, civil action against the lawyers involved. Typically, claims arise from disgruntled beneficiaries (or would-be beneficiaries) who are disappointed not to have received more from a deceased’s estate than they did. In support of a challenge to the validity of the will in question, these claimants will frequently assert that the testator lacked mental capacity, or that he or she was acting under duress, or the effects of undue influence at the material time. These sorts of arguments are frequently devoid of any legal merit but, with ever increasing sums of money at stake (largely due to escalation in property prices), desperate times call for desperate measures. Private Client solicitors will find themselves caught up in the maelstrom of a family feud all too easily as claimants allege that it was their failure to spot the incapacity or influence (or take measures to guard against it or protect the estate from future challenge) which caused the situation to inflame.
Unfortunately for the private client sector, the Covid-19 pandemic has served only to amplify these issues. Resources have been stretched with the inevitable surge in demand for will writing during the pandemic, workarounds have had to be quickly devised to circumvent the inability to visit elderly clients in care homes, both to take instructions and to execute wills, delays have occurred.
All of these challenges – coupled with the practical issues of home-working and remote supervision – have combined to make the past 15 months some of the most testing times for the wills and probate sector in living memory. Unfortunately, the environment that Covid has created gives disgruntled beneficiaries all the ammunition they need to mount claims into the future as wills that were executed during the pandemic start to come under the spotlight.
The Covid-19 crisis sparked an increase in demand for private client services, particularly will writing. In the earlier days of the outbreak, the Law Society reported a 30% increase in demand for will writing and in December 2020, a survey undertaken by the Law Society revealed that 7% of respondents had stated that they had made or updated their will during the first lockdown. Whilst that figure may not seem excessive, the Law Society commented that given how many people do not have a will, it was a striking shift.
With the pandemic death toll, very sadly, exceeding 120,000 at the time of writing, Private Client practice will also undoubtedly be seeing an effect on the number of probate instructions being received placing Private Client lawyers under significant pressure.
With a third wave being predicted by some scientists and the ‘delta variant’ taking hold, it may feel that there is no light at the end of the tunnel. With many Private Client solicitors already working overtime, sadly the surge in demand for Private Client solicitors may not yet be over. Naturally, being under more severe time pressure provides the perfect environment for mistakes to be made.
Less access to Clients/GP’s
Private Client solicitors, who often rely on having direct access to clients, were, and to some extent remain, unable to access care homes and/or undertake direct personal meetings with clients. The lack of access to clients makes it harder to assess whether a client has the necessary mental capacity to make decisions relating to their will and/or power of attorney and/or whether an individual is being unduly influenced.
Ordinarily, if concerns over a client’s mental capacity were raised, a solicitor would be able to refer the client to their GP to undertake a ‘golden rule’ assessment (an assessment undertaken by a GP to confirm a client’s mental capacity). With GP’s resources also being under significant strain due to the pandemic (and with GPs enduring the same lack of access to care homes as other members of the public), such assessments have been almost impossible to obtain. This makes resulting wills (and the Private Client lawyers that drafted them) more vulnerable to attack further down the line.
Change in working practices
The increased demand of Private Client services came at an already challenging time, when lawyers were facing dramatic changes to their working practices as a result of the various ‘stay at home’ measures imposed by the UK Government. The first lockdown (March 2020) resulted in many solicitors being forced to work from home, and this situation has largely endured for most ever since.
Working remotely brings with it increased cyber security risks. There have been reports that the pandemic has led to an increase in phishing attacks, malspams, and ransomware attacks. Whilst not a risk that is specific to Private Client practice, it nevertheless remains a serious risk that, if not protected against, could lead to data protection breach claims and potentially disappointed beneficiary claims if monies that they are due to receive are lost because of a cyberattack.
Supervision of more junior staff is also harder whilst working remotely. Supervisors are having to rely more heavily on juniors raising questions and asking for help rather than spotting mistakes themselves. There has further been a tendency for lawyers to work longer, and more unsociable hours, from home as it is more difficult to separate working and home life. Working remotely and longer hours inevitably leaves the door open for more mistakes. Although again, remote working is not a risk specific to Private Client practice.
One change to working practices, which is specific to private client work, is the execution of documents such as wills and powers of attorneys. The lack of a physical office has made it more challenging for physical wills to be produced for execution. Further, the Wills Act 1937 still provides that wills have to be physically witnessed by two individuals, and powers of attorney by one. The initial lockdown made it very difficult for the witness requirements to be met. To overcome this issue, the idea of so called “window wills” was formed, whereby solicitors would witness wills being signed through client’s house windows. There have also been reports of wills being signed and witnessed on park benches, car bonnets or in gardens. Thankfully, the Law Society has introduced guidance on this issue since the first lockdown, which has made it easier for wills to be executed remotely, but whilst this may go some way towards deterring validity claims from disappointed beneficiaries, it does not close the door to such claims entirely.
Covid has turned what was once a simple process (of preparing a physical will and having it executed) into something considerably more difficult and fraught with vulnerabilities. Whilst many firms adapted quickly to the ‘new world’, others were less reactive, and significant delays to wills being finalised and executed is likely to have arisen. Some testators will, sadly, have died before their wills could be executed and claims for culpable delay by the legal team may well follow.
Impaired court service
As an inevitable consequence of all the factors we mention above, more pressure has been placed on the Probate court to administer and oversee the administration of estates.
The Probate court began the pandemic on the back foot. At the start of the pandemic, the Probate court already had a large backlog, caused partially by the closure of 18 sub-registries and an influx in probate applications when the probate application fees increased in 2019.
When the first lockdown was imposed in March 2020, many probate offices could not operate at anything like full capacity due to staff illness and remote working. The backlog grew. Increasing death rates as a result of the pandemic has stretched resources even further.
The delays in obtaining probate leaves dependants of the deceased facing delays in receiving their inheritances. Where dependants were financially dependant on the deceased, this could leave them in a very challenging position having to try and urgently source funds to cover day-to-day living expenses.
Whilst delays at the court service is arguably outside of a solicitor’s control, ensuring that a prompt probate application is made will be more crucial than ever to avoid claims from disappointed beneficiaries.
Whilst mistakes happen and cannot always be avoided, there are some simple actions that can be taken to help minimise the increased risks which Covid-19 brings with it. Our top five suggestions would be:
5. Be proactive – Keep a close eye on what is happening with the pandemic and the impact this is having on the court service, your fee earners, the level of demand for your services etc. Make suitable – and swift – changes to your ways of working in response to these changes.
4. Zoom is your friend – Whilst we would recommend avoiding the filters section of Zoom (we all remember the Texan cat lawyer!), video conference platforms such as Zoom are extremely beneficial for conducting those important meetings where you need to see your client ‘face to face’ to assess capacity and ensure both that they understand what you are advising and that you are taking full and complete instructions. Email is great, but it is so easily misconstrued, and emotions do not come across at all well in this form of communication. Whilst face to face is always best (and the world seems to be opening up again to this as we write), video communication is undoubtedly the next best thing for attempting to find out what the client really wants to achieve and what their unwritten agenda might be.
3. KIT – Keep in touch with all fee earners and support staff who are working from home. Ensure that they have everything they need to perform their job as smoothly as possible and make sure they know how to contact you with any queries. Don’t let fee earner training slip simply because the office may not be open at present. Keep a close eye on fee earners’ caseloads and try not to let any individual be overwhelmed by new instructions.
2. Prepare Clients – When discussing new potential instructions with clients make sure that they are aware of the present delays and the complications which Covid-19 may cause. Make sure to manage the expectations of clients and keep them updated throughout the entire process. So many claims that we see could have been avoided through better communication and expectation management.
1. Keep records – A claim cannot always be avoided. However, accurate notes recording how certain decisions have been reached (ie when assessing client capacity) and information relied upon will greatly assist in fending off any complaints that do arise. Always make full notes of any meetings, whether held virtually, in person or through a window; and ensure that those notes are kept in a place that can easily be found again further down the line (ie preferable on an electronic filing system, but if not, definitely on the hard copy client file). If typing up notes, keep the handwritten version; it may come in handy. Do not let recordkeeping slip due to the pandemic.
This article has been written by Sarah Hinton, of Beale & Company Solicitors LLP’s Bristol Office. If you have any questions about Beale & Company, Paragon or the above article please do not hesitate to get in touch.
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