9 - Wills: Professional Conduct Flashcards
What is the SRA Code of Conduct for Solicitors (CCS), and how does it apply to will drafting?
The SRA Code of Conduct for Solicitors (CCS) forms part of the SRA Standards & Regulations, setting out the professional standards expected of solicitors authorised to provide legal services. Key points include:
- It applies to all those working in a law firm, and each individual must exercise personal judgement on how to meet the standards.
- The CCS is drafted in general terms, but the SRA has provided guidance notes to assist in interpreting and implementing the standards.
- Certain parts of the CCS are particularly relevant when drafting wills.
What are a solicitor’s duties regarding third party instructions?
Under CCS 3.1:
- A solicitor can only act on instructions from the client or someone properly authorised to act on their behalf.
- If the solicitor suspects that the instructions do not represent the client’s true wishes, they must not act until satisfied otherwise.
- Solicitors should not take instructions from a third party unless authorised by the client and should avoid situations where one person is giving instructions on behalf of another (e.g., when meeting couples or family members together)
- Solicitors must be alert to the risk of undue influence, as a will made under such influence or as a result of fraud will not be valid.
What are a solicitor’s duties regarding providing a competent service in the context of will drafting?
Under CCS 3.2 and 3.3:
Solicitors must ensure the service provided is competent and delivered in a timely manner.
Solicitors must maintain their competence, keeping their professional knowledge and skills up to date.
In will drafting, solicitors must be competent in advising on all aspects of the retainer, including any tax and trust implications.
Delays in drafting a will could result in the testator dying intestate or with an earlier will that no longer reflects their current wishes.
These duties also overlap with common law obligations requiring solicitors to exercise a duty of care and skill, and failure could give rise to a claim for negligence.
What are a solicitor’s duties regarding a client’s circumstances and testamentary capacity when drafting a will?
Under CCS 3.4:
Solicitors must consider and take account of their client’s attributes, needs, and circumstances.
Solicitors must be alert to any indication that their client may lack testamentary capacity.
Testamentary capacity is a common legal challenge in will disputes, and if the testator lacks capacity when making the will, the will is invalid.
Solicitors must ensure the client has testamentary capacity and retain evidence to support this, particularly if the will is challenged.
If there is doubt about capacity, the solicitor should seek the client’s consent to approach their medical practitioner for confirmation and record the findings.
If capacity is confirmed, the doctor should act as a witness and record their findings.
If capacity cannot be confirmed, no will should be prepared, except through a statutory will under the Court of Protection.
How should gifts to the solicitor in a will be treated under the CCS?
Under CCS 6.1:
- Solicitors should not act if there is an own interest conflict or a significant risk of such a conflict.
- If a client wishes to leave a gift to the solicitor or a member of their firm, the solicitor should generally refuse to act, especially if the gift is of significant value, unless the client takes independent legal advice.
- The significance of the gift may be determined by the size of the testator’s estate.
- There is no presumption of a testator’s knowledge and approval where the will drafter is a beneficiary, and the burden of proof lies with those seeking to prove the will.
What are the common law duties of a solicitor?
The common law duties of a solicitor when drafting a will include:
- A general duty to prepare a will with due skill and care, and within a reasonable time (White v Jones).
- The duty to draft a will that gives effect to the testator’s instructions.
- Mistakes are often only discovered after the testator’s death, when it is too late to rectify them.
- If the testator dies without a valid will that reflects their intentions due to solicitor error, the solicitor may be liable to the intended beneficiary.
A duty to advise the client on how to properly execute the will to avoid invalidation, as seen in cases like Ross v Caunters and Esterhuizen v Allied Dunbar Assurance.
What is good practice for a solicitor when taking instructions from a client?
Good practice for solicitors when taking instructions for a will includes:
- Personal interviews with clients to ensure full and clear instructions are obtained.
- Written confirmation from the client that they want the law firm to act and clear terms of instructions.
- Using checklists or questionnaires to gather key information, while still engaging with the client to understand their personal circumstances and goals.
- Advising clients on alternative ways of disposing of their estate, including lifetime gifts and relevant tax planning.
How can solicitors minimise the risks of claims under the IPFDA 1975 when taking instructions for a will?
To minimise the risks of claims under the Inheritance (Provision for Family and Dependants) Act 1975, solicitors should:
- Take full details of the client’s family and dependants.
- Check ancillary relief orders to see if claims under IPFDA 1975 have been barred, particularly with former spouses or civil partners.
- Document any termination of maintenance to someone other than immediate family members.
- Advise on the potential for claims from individuals with special needs, and the risk of social services pursuing claims.
- If a client wishes to exclude a potential applicant, obtain a written statement explaining why no provision was made and retain it with the will.
- Inform clients that it is impossible to fully prevent future claims under IPFDA 1975, as illustrated in Ilott v The Blue Cross and others [2017].
What is good practice for solicitor’s when reviewing wills?
Good practice for solicitors in reviewing wills includes:
Regular reviews of the will, either generally or after significant events such as:
- Marriage or civil partnership.
- Divorce or dissolution of civil partnership.
- Birth of children.
- Death of close relatives or beneficiaries.
- Substantial changes in asset value.
- Inheritance or acquisition of foreign assets.
Provide a summary of the professional conduct issues faced by solicitors when dealing with wills.
Professional conduct matters pervade all aspects of your work irrespective of the department you work in. However, when providing will drafting services, particular attention should be given to:
- CCS 3.1 - 3.4
- CCS 6.1
- IPFDA 1975
- Common law duties and obligations
- Your firm’s best practice
