Will drafting—taking instructions
Will drafting—taking instructions

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Will drafting—taking instructions
  • First steps
  • The client's situation

Even though the instructions to draft a Will may appear to indicate that only a simple Will is required, a high level of skill is still needed in order to draft it correctly and to an adequate professional standard. In turn, that adequacy of drafting cannot be beyond doubt unless the original instructions are comprehensive and cover every possibility, even those that might seem remote. The failure to take adequate instructions may only surface many years later when the testator dies, by which time it is too late to correct any errors or gaps. Consequently, to do all that is possible to avoid a negligence claim, care and attention to detail are required from the outset.

First steps

For obvious reasons, when seeing a client for the first time, the most important criterion is to make sure that they have the testamentary capacity to make a Will. On the basis that they have testamentary capacity, the practitioner then needs to:

  1. confirm with the client the dispositions they want to operate on their death

  2. reduce those instructions to an intelligible form that is suitable for the testator's circumstances

  3. ensure that the Will thus drafted is executed in conformity with the statutory rules

  4. not forget any liability they may have to third parties

Generally, the instructions for a Will are taken at a