Ethical and Professional Conduct Issues

Question 1

What must a solicitor be satisfied of when taking instructions from client in relation to third parties?

Answer 1

Must be satisfied that instructions are from client and should be wary of taking instructions from anyone else unless authorised

Should be alert to risk of undue influence

Question 2

What must solicitor do in relation to providing a competent service?

Answer 2

Should be competent to advise on all aspects of retainer, including tax and trust implications

Question 3

What should a solicitor do with regards to timings and drafting a Will?

Answer 3

Solicitor should draft will promptly to avoid risk of T dying before new will is finished

Question 4

What should solicitor do in relation to client’s circumstances?

Answer 4

• make sure they have testamentary capacity and retain evidence to support this
• court will need strong evidence to override record of solicitor saying someone had testamentary capacity

Question 5

Can solicitor themselves benefit under Will?

Answer 5

No mandatory prohibition on this but would be recommended that you refuse to act where they are going to make a significant gift to you or your family, or member of firm or family unless the client makes independent legal advice

Question 6

What are the common law duties related to drafting a will?

Answer 6

• prepare will with due skill and care, within a reasonable time
• obligation to draft will which gives effect to T’s intention (otherwise may be liable to disappointed beneficiary)
• advise client how to execute Will properly

Question 7

What should the client be advised if they seek to disinherit children/spouses?

Answer 7

May be able to bring claim against estate under IPFDA 1975

Question 8

When should Wills be reviewed as a matter of good practice?

Answer 8

• marriages
• divorces
• birth of children
• death of close relatives/beneficiaries
• substantial changes to assets
• recent inheritance of their own
• moving or acquiring assets abroad