The perils of failing to keep attendance notes

Practitioners should pay particular attention to a recent ruling where a solicitor faced judicial criticism for failing to keep full attendance notes when taking wills instructions.

This was an unusual case where the solicitor insisted in evidence that the will was drafted correctly and reflected the testator’s wishes, even though the evidence indicated the opposite.

Factual background

The deceased made a will leaving 26% of his company shareholding to his wife and the same proportion to a friend. The estate was worth around £6.4m gross. Under the terms of an updated will as executed, the effect was significant – a change from 26% of the shareholding each to 26% between the wife and friend.

The claimant sought rectification of the will, supported by the wife. In evidence, the wife said she was present both when instructions for the will were given and when it was executed; and that her late husband did not intend to change the effect of his previous will. She maintained that from the time of the first will, it was his intention that she and the claimant would receive up to 26% each so as to give them a controlling interest.

The claimant relied in part on the absence of documentary evidence (apart from the will) showing the deceased’s intention to change the gift of shares to 26% in total; and his statements to the effect that the claimant would receive enough to bring his shareholding to 26%.

The claimant also said that the solicitor’s file included a manuscript note which reads “each”, but which was transcribed by a secretary as “both”.

The solicitor

The solicitor (one of the defendants) was a partner at MAB Solicitors at the time. He gave evidence in his capacity as the will-drafter stating that the wills instructions were that it be drafted in the form as executed. When analysing the factual background, the judge noted that very little of the wills questionnaire on the solicitor’s file had been completed; and levelled a number of criticisms at him – including a lack of transparency and frankness for which there was no explanation.

Also, given that he was a STEP member, a partner and team leader and had been qualified since 1988, the judge felt unable to rely on his evidence. His reasons includes a number of contradictions in his evidence and, particularly, the issues around his attendance notes. Despite insisting that attendance notes were prepared and filed, he told the court he could not retrieve them from the electronic document management system.

When asked specifically about the change from 26% each to 26% for both and that it was not spelt out in his notes, he sidestepped the question by saying “In my notes I set out what he wanted” (notes that could not be found).

The ruling

The court ruled in favour of the claimant, stating that the solicitor’s account was “inherently improbable”. He was found to be evasive, equivocal and unsatisfactory in his “litany of excuses”.


Posted on 15.07.21