A Practitioner’s Guide to File Retention

Those entering the Will Writing industry with little or no experience are often shocked by the magnitude of work and liability they can be faced with when they take on clients. It’s not just a case of writing their Will or assisting with an LPA.

As well as the mammoth task of preparing documents for a client that will stand the test of time and the English legal system the Will Writer also needs to consider what would happen if it doesn’t perform as it should.

If this is the case then they are likely to get a letter from a solicitor who has been instructed by a disgruntled beneficiary. It is important to note at this point that just because you get one of these letters you are not guaranteed to be sued or held liable.  The letter from the solicitor will be titled Larke v Nugus and will essentially ask for your client file.

What constitutes a client file?

Your client file will ideally contain a contemporaneous set of notes detailing your client meeting. They will ideally be signed by your client to show that this was a true reflection of your meeting with the client. This will include information on the client’s estate, the advice provided as well as what information you gathered regarding the testator’s capacity.

You may also have a copy of the terms of business that you provided to your client (signed by the client) showing that they understand what both parties obligations are.

The client file may contain the client’s Will and/or a copy of their Will. If you do not retain the last Will and testament for the client then you should definitely keep an attestation record. This could include a photograph of the attested Will.

You should certainly consider taking a photocopy/photograph of the client’s proof of identity.

A Larke v Nugus letter

A Larke and Nugus letter is simply a letter from a solicitor asking you to provide information on the following:

• The relationship between the Will Writer and the Testator
• Details on how the instructions were given and who was present at the time
• Information on how mental capacity was established and documented
• Earlier Wills, what deviations would be involved from the Wills and for what reasons
• Whether the information provided to the testator was explained and understood
• The execution of the Will, who was present and where it took place

Destruction of Wills/client files

You should never destroy a client’s Will or client file until there is no risk of a claim. Retaining the documents allows you to help the client review the file and keep them updated with new and relevant legislation.

Storing a client file

There are no restrictions as to how you should store the client files. Common sense indicates that if you are storing your clients physical Will then it is only this document that will be admissible at probate.

The rest of the file can be stored electronically. A good number of members of the SWW are choosing to store their client files securely with Safe 4 information management. This secure system removes the need for the Will Writer to back up their system continuously and provides an audited backup.

If you choose to store the physical instructions then it is wise to keep them in a fireproof cabinet or safe with the Wills. You may also wish to store these documents in water proof pockets/containers in the cabinets to protect against all eventualities.

It goes without saying that you should check that the documents are covered on your professional indemnity insurance policy and that when you retire or cease working that adequate run off cover is in place.

Further points for consideration

A Will after being written is the property of the client/testator and should never be withheld from them. After their death it belongs to the estate.

There are no hard and fast rules about how long this information should be kept for but it is best to err on the side of caution. As such we advise that client files should be retained for 7 years after the date of death of the testator. Where the date of death of the testator is not known then it should be considered that the testator might reach the age of 100 and documents should be kept as such.

The storage of your client’s information should always be done in accordance with relevant legislation such as the Data Protection Act.