By Lesley King, College of Law, London


Family fortunes

Solicitors are often anxious about the circumstances in which it is permissible to draft a will for a family member that benefits the solicitor. The recent decision of Franks v Sinclair [2006] EWHC 3665 contains some guidance.



Mrs Franks had made several wills over a period of years, leaving little or nothing to her son - a solicitor - with whom she was not on good terms. A will made in 1992 left the residue to her daughter's son, Jonathan, with whom she had a close and warm relationship.



The son claimed that in 1994 his mother asked him to prepare a will removing all benefits from her granddaughter, who had 'behaved badly over a loan', and leaving the residue equally to him and his sister instead of to Jonathan. He did not ask his mother for an explanation, simply assuming that she had argued with Jonathan. He had himself not been on speaking terms with Jonathan for some years.



When the will was prepared, Mr Franks went to his mother's house with two members of his firm to act as witnesses. He read the will out to his mother; the residuary gift did not refer to the beneficiaries by name. It left the residue equally to her two children with a substitutional gift to the grandchildren.



Mr Franks took the original will back to the office and did not leave Mrs Franks a copy. He subsequently destroyed the notes of the meeting.



Mrs Franks appears to have remained on good terms with Jonathan and, a few months later, signed an enduring power of attorney in his favour. When Mrs Franks died in 2004, Jonathan challenged the will.



Where the circumstances in which a will is executed are such as to excite the suspicion of the court, the burden of proof lies on those seeking to prove the will to establish affirmatively, on the balance of probabilities, that the testator had known and approved the contents of the will. In this case, serious suspicion was aroused as to whether the testatrix had known and approved the contents of the will in question.



A will leaving the residue to be divided equally between the testator's two children would appear uncontroversial. However, as Judge David Richards said: 'The particular circumstances of this case are not the same as the run- of-the-mill case where a testatrix wishes to leave the bulk of her estate equally among her children and does not give serious consideration to alternative provisions. The main change to the will favoured Mr Franks, who had been excluded from the 1992 will, to the detriment of Jonathan, with whom he was not on speaking terms. Mr Franks failed to take elementary precautions, such as keeping a note of his mother's instructions, leaving her with a copy of the draft or the executed will to consider at her leisure, taking her through the will and explaining its provisions in everyday language and ensuring that she received independent and impartial advice. The particular circumstances of this case raise a significant degree of suspicion and the court must carefully scrutinise the evidence.'



Mr Franks placed reliance on the fact that he had read the will out to his mother, word for word, and, hence, given her the opportunity to hear the terms of the will and raise objections to it.



The judge said that the substitution clause was 'expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook... it is very unlikely that Mrs Franks understood the effect of clause 8 just as a result of it being read out loud to her.'



In the judge's opinion, it would have been more helpful to provide an explanation of the clause in simple language. 'The reading of the will cannot be relied on as establishing Mrs Franks' knowledge and approval of its terms.'



The judge said the particular circumstances clearly required Mrs Franks to receive independent advice. One of the duties of a solicitor, even if he is the son of the testator, is to discuss and, if appropriate, question the proposed terms of the will so that the testator reaches a fully informed decision. Mr Franks was incapable of impartial discussion of his mother's instructions. Not only was he to become a principal beneficiary in place of Jonathan, but he was not on speaking terms with Jonathan.



The judge drew adverse inferences from the failure to keep any note of the instructions.



The Solicitors Practice (Conflict) Amendment Rule 2004 introduces a new 16D on conflicts into Solicitors Practice Rules 1990. Paragraph 5 removes the obligation to ensure that a client takes independent advice about a gift to the solicitor where the client is a member of the beneficiary's family.



The guidance to the rule says: 'Extreme caution, however, should always be exercised when you are asked to prepare a will for a member of your family under which you are to benefit as your ability to give independent, dispassionate advice could easily be undermined by your relationship with others within, and outside, the family. The risk of conflict, therefore, is very high. If you are to receive a significant gift from the estate, you need also to consider the reasonable expectations of the other prospective beneficiaries, who are likely to be your relatives. If, having taken these "reasonable expectations" into account, it appears that you are to receive a benefit which is in any way disproportionately large, you should always ensure that the client is separately advised on that gift.'



In all but the most clear-cut of cases, a solicitor should advise a family member to obtain independent advice. More general points that arise from the case are the importance of preserving your notes in case of dispute and of giving a clear explanation of complex clauses which will not be readily comprehensible to a lay person.