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The Law Society’s Practice Advice Service provides answers to frequently asked questions

I am the compliance officer for legal practice at a firm that predominantly deals with private client work. I am conducting a risk assessment of the firm’s will-writing procedures. One of the risks identified relates to our obligations where a draft will has been sent to a client for approval and the client does not respond. Does the Law Society have any guidance on this?

You may wish to consider the Law Society’s Wills and Inheritance Protocol, which states the following:

“If a client does not respond within a reasonable period after the practice has sent a draft will for approval or a will for execution, write to the client:

a) explaining that the will drafter has carried out the terms of the retainer and will take no further steps unless instructed to do so;

b) explaining that the will drafter will make any alterations to the will required by the client; and

c) reminding the client of the way in which the estate will devolve if the will is not executed.

You should send two further reminder letters, at reasonable intervals, and if nothing further is heard from the client, present a bill for the work done.”

For more information, see the protocol, available from the Law Society website at www.lawsociety.org.uk/wiqs.

The adoption of the protocol is mandatory for members of the Wills and Inheritance Quality Scheme, and voluntary for all other members of the Law Society where it is appropriate to the matter and in the best interests of the client.

On my client’s instructions, I posted his engrossed will to him for signature. It has now been returned following execution. On checking the will, it appears that one of the witnesses has the same surname as the testator’s daughter. She is a residuary beneficiary. Am I under a duty to check signed wills when I have not personally witnessed the execution?

If you are not personally witnessing the execution of a will, you are under a duty to provide full instructions on how the will should be signed and witnessed. When the will is returned, you should check that it looks correct and that there are no obvious mistakes or glaring omissions. As outlined in the Law Society’s Wills and Inheritance Protocol, you should check that the formalities have been correctly complied with and the witnesses do not appear to be beneficiaries, or spouses or civil partners of beneficiaries.

If anything is untoward, then make enquiries of the client and, where appropriate, either: make a file note explaining the circumstances, and place this with the will; or reissue a further engrossment of the will for the client to execute, if formalities have not been complied with.

Section 9 of the Wills Act 1837 sets out the formalities for a will to be validly executed. The will must be signed by the testator in the presence of two witnesses. A witness must not be a potential beneficiary of the will or the spouse of a beneficiary.

Ross v Caunters [1979] 3 All ER 580 held that the solicitors had breached their duty by not checking the will after execution, not noticing that one of the witnesses was the spouse of a beneficiary, and not bringing that fact to the attention of the testator.

I am preparing a will for a client who has specifically asked for advice on the directions he should leave his executors about his online bank accounts, email and social media accounts. I have not advised on this previously. Is there any information available to assist me?

Yes. The Law Society’s Wills and Inheritance Protocol suggests that, to facilitate the administration of the estate, the client completes a list of assets, including digital assets, and considers how those dealing with his estate will be able to access those assets.

It is recommended that the client completes the Law Society’s Personal Assets Log, or similar document, for this purpose. It is important that this is kept up to date and gives clear instructions on how the testator’s executors should deal with those assets.

It is also important that records are taken and kept up to date with regard to a client’s social media presence, to allow executors to undertake a tidying-up exercise post-death. Some clients may want their social media accounts deleted, while others may want theirs to be preserved and ‘memorialised’ online. It is a personal choice upon which instructions may be taken and details included in a Letter of Wishes addressed to the executors.

It is not advisable for a client to mention passwords in their will, as it is a security risk while your client is alive, and may become a security breach once the client dies and the will is published. Further, if a third party, including the executor(s), uses someone else’s password, they could be committing a criminal offence under the Computer Misuse Act 1990.

Clients may also need to be reminded that they are unlikely to be able to gift digital music, books and photographs, as these are usually not tangible assets comprised in a person’s estate, and are rather enjoyed

under licence, which may not be assigned to a third party.

For more information, please see the Wills and Inheritance Protocol.

This column is compiled by the Law Society’s Practice Advice Service (020 7320 5675). Comments relating to the questions should be sent to Mrs Anjali Mouelhi, solicitor technical adviser, The Law Society, 113 Chancery Lane, London WC2A 1PL.

While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.

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