IPW Autumn Journal 2026 (8) - Flipbook - Page 9
Importantly, do not simply record your conclusion that your client had
capacity. Record why you reached that conclusion. For example:
Could they discuss current affairs and engage in conversation
appropriately?
Were they able to explain, in broad terms, the assets making up
their estate?
Did they demonstrate an understanding of their family
circumstances and those who may reasonably expect to benefit?
Did they display sound judgement when discussing their
testamentary wishes?
Did they understand that they were creating a legal document to
determine how their estate would pass on death?
By addressing these points contemporaneously, your file is far more
likely to answer the questions that a contentious probate lawyer may
ask years later if the will becomes the subject of a dispute.
Where there are any concerns, record the steps taken, whether that
involves obtaining a medical opinion, asking further questions, or
carrying out a more detailed capacity assessment.
Similarly, make careful notes of any steps taken to address concerns
regarding undue influence. Recording if you met with the client alone,
ensured the independence of their instructions, or identified and
addressed any potential red flags can prove invaluable.
Record the Drafting Trail
Retain all drafts of the will and record any significant amendments
made during the process. A simple note explaining what changed and
why it was made can often answer questions before they develop into
potential allegations.
Equally important is documenting how you satisfied yourself that the
client understood and approved the final version of the will.
