I accompanied a family member to see a Solicitor to give instructions to write their Will, why was I asked to sit in the waiting room?

March 21, 2023

When taking instructions for the preparation or amendment of a Will, a Solicitor may ask the accompanying party to leave the room. The reasons for this are practical in nature.

When a person has died a Will may be challenged if there is any suspicion that the Testator (the person making the Will) was coerced into doing so or coerced into giving certain instructions. It could be argued that they were vulnerable at the time that they gave the instructions, due to the presence of another person who they may not want to upset, and that their judgement was clouded by this. From this it could be suggested that the Testator was not fully aware of the implications of what they were requesting in their Will.

If another person, particularly a beneficiary of the Will, is present in the room it could promote a genuine concern for undue influence and coercion. This could lead to a claim on the future estate and the costs of this are likely to be extremely high.   

For a Will to be valid the Testator must provide instructions for their Will independent of any influence and they must demonstrate that they understand the implications of what would be written in their Will. If another person is in the room while instructions are given it could potentially leave scope for interjection and the criteria of whether the Testator has given instructions completely independently may not be satisfied.

It is a requirement under Principle 7 of the SRA Principles for a Solicitor to act in the best interests of their client. Therefore, this means that if they do not reduce the possibility of undue influence or coercion by asking a secondary party to leave the room, they could be in breach of the SRA Principles. There could also, in some circumstances, be grounds for a Solicitor to be subject to a professional negligence claim should they not act appropriately in this situation.

Avoiding having another party in the room when instructions are given drastically reduces the chances of a claim being made on the grounds of undue influence and professional negligence.

My family member is vulnerable, and I am worried about them not understanding the advice they are given, so why can’t I be present?

After considering the above, a Solicitor has to ensure that a Testator has the capacity to make a Will. If they are unsure of this, or have reason to doubt capacity, it may be suggested to the Testator that a capacity assessment is conducted by a medical professional.

A Solicitor will be very reluctant to take instructions and put a Will in place for a person who they do not think understands the implications of their Will. Therefore, whilst concern for your family member is completely understandable, a Solicitor has a professional duty to establish that the Testator understands the implications of their Will and its contents. A Solicitor will take all of the Testator’s circumstances, concerns, and intentions into account and give advice based on these factors. The Testator will also be given many opportunities throughout the meeting to ask any questions that they have.

If it is found that your family member does not have the capacity to make a Will, then any Will subsequently made is highly likely to be open to challenge.  

Sophia Kenna
Paralegal – Wills and Probate Department

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