Ethics FLK2 - Wills Flashcards
A solicitor is invited by the manager of a local care home to give an informative talk to the home’s elderly residents on the importance of making a will. The solicitor gives the talk to those residents who have expressed an interest in the subject matter and, in doing so, presents an even-handed and accurate explanation of the advantages and disadvantages of making a will. At the end of the talk the solicitor hands out leaflets advertising the solicitor’s firm’s will drafting services. The solicitor also offers to draw up a will there and then for any residents that would like the solicitor to do so.
Which of the following best describes the consequences of the solicitor’s actions under the SRA Code of Conduct for Solicitors, RELS and RFLs?
A-All of the solicitor’s actions breach the Code because they are unsolicited approaches to members of the public.
B-The solicitor is unlikely to have done anything wrong in giving the talk, but handing out the leaflets and the offering to draw up wills breach the Code as unsolicited approaches to members of the public.
C-The solicitor is unlikely to have done anything wrong in giving the talk and handing out the leaflets, but the offering to draw up wills breaches the Code as an unsolicited approach to members of the public.
D-None of the solicitor’s actions breach the Code because making a will is in the client’s best interests.
E-None of the solicitor’s actions breach the Code because the solicitor has acted in response to the manager’s invitation and so the solicitor’s approaches are not unsolicited.
Option B is correct. Giving an informative and even-handed talk to an interested audience is unlikely to breach the Code (option A is therefore wrong). But in going beyond this the solicitor is publicising services through a targeted and intrusive approaches to members of the public, and consequently is in breach of Paragraph 8.9 (the solicitor may also be criticised for taking advantage of a vulnerable client (see 4.4.3)). Option E is wrong; the approaches are unsolicited by the ultimate clients and so the manager’s invitation is irrelevant. Option D is wrong; it may be a good idea for the client to make a will, but this does not absolve the solicitor of their obligations under Paragraph 8.9.
Unsolicited = not asked for; given or done voluntarily.
Quick Q:
A solicitor is instructed by a long-standing client to draw up the client’s will. The client’s instructions are that, in recognition of all the work the solicitor has done for the client over the years, the will is to include a legacy of £10,000 to the solicitor.
Which of the following best describes what the solicitor should do?
Draw up the will, as instructed, after the client has taken independent advice.
Option C is correct. The guidance from the SRA is that usually a solicitor should refuse to act where the client is proposing to make a significant gift to the solicitor or a family member etc unless the client agrees to take independent advice. It is not sufficient simply to give the client details of other solicitors (option E is wrong). The solicitor should not take it upon themselves to deviate from the client’s express instructions (options B and D are wrong). Option A is wrong because it would be premature to refuse to draw up the will at this stage – the client’s instructions can be accommodated if the client agrees to take independent advice.
Quick Q:
A solicitor drew up a will for a client. The terms of the will appointed the client’s widow as executor and left the entire estate to the client’s son. The client died last week. The client’s son contacts the solicitor and explains that he is in debt and that he urgently needs proof that he will soon receive an inheritance to show to his main creditor otherwise the creditor will start bankruptcy proceedings against him. The son requests a copy of the will.
Which of the following best explains how the solicitor should respond to the request?
Ask the widow for consent to release a copy of the will because the duty of confidentiality has passed to the widow.
Option D is correct. The duty of confidentiality in Paragraph 6.3 extends to current and former clients and survives death of a client. On death the duty of confidentiality passes to the personal representatives. Accordingly, the solicitor cannot provide a copy of the will in the absence of consent from the widow as executor, and options A and B are therefore wrong. (Once the Will is proved it will become a public document but in the interim the solicitor must maintain confidentiality.) The content of the will, not just a copy of it, is confidential (with the result that option C is wrong). Option E is wrong – there is no legal requirement on the facts necessitating disclosure of confidential information.
Quick Q:
A wealthy client is proposing to leave a gift of £5,000 to his solicitor in his will. The solicitor has advised the client to take independent legal advice but the client has refused to do so. The solicitor and his client are not related.
Will the solicitor be in breach of his professional conduct obligations if he prepares the will in accordance with his client’s instructions?
Yes, the solicitor will be in breach of his professional conduct obligations because he should have declined to act once the client refused to take independent legal advice.
Option E is correct because the gift is significant and he should have declined to act once the client refused to take independent legal advice. Paragraph 6.1 of the SRA Code of Conduct for Solicitors requires solicitors do not act if there is an own interest conflict or a significant risk of an own interest conflict. The SRA ethics guidance on drafting wills indicates that where a solicitor is asked to draft a will for a client which includes a gift to the solicitor which is of significant value in relation to the size of the client’s overall estate, or is of significant value in itself the solicitor will usually need to cease acting if the client does not agree to taking independent legal advice.
Option A is wrong because a gift of £5,000 would be deemed to be significant in itself and a solicitor should not act in these circumstances unless the client has taken independent legal advice.
Option B is wrong because a gift from a client may mean the solicitor is not acting in the client’s best interests and may also call into the question the solicitor’s integrity, as well as risking an own interest conflict of interest. A solicitor should not act in these circumstances unless the client has taken independent legal advice
Option C is wrong because a solicitor should not act in these circumstances unless the client has taken independent legal advice. It is not enough to advise the client to take independent legal advice, as indicated by the SRA ethics guidance.
Quick Q:
When drafting a will for his wife’s friend (who has a substantial estate), a solicitor is asked to include a legacy of £1,000 to the solicitor’s wife. The friend wishes the legacy to be included in her will because the solicitor’s wife is a good friend.
Which of the following best explains the position of the solicitor in relation to these instructions?
He should not draft the will as instructed without the client obtaining independent legal advice about the legacy.
any gift worth more than £500 is likely to be considered significant (additionally: if worth more than 1% of the client’s current estimated net estate or if it might become valuable at some point, especially after the death of the client.)
Option E is the best answer. Paragraph 6.1 of the SRA Code of Conduct for Solicitors, RELs and RFLs requires that a solicitor does not act if there is an own interest conflict or a significant risk of such a conflict. Ethics guidance from the SRA on will drafting states that where the client wishes to make a gift of significant value to the solicitor or a member of their family, the solicitor should satisfy himself that the client has first taken independent legal advice with regard to making the gift. This includes situations where the intended gift is of significant value in relation to the size of the client’s overall estate and where the gift is of significant value in itself. The Law Society has issued a practice note (‘Preparing a will when client leaving gift for you, your family or colleagues’.) which offers some guidance on the meaning of significant and advises that a solicitor should carefully consider any gift worth more than £500 to determine whether it may be considered significant in the particular circumstances, and that it can be assumed that it would be significant in some situations including if worth more than 1% of the client’s current estimated net estate or if it might become valuable at some point, especially after the death of the client. Here the gift is over £500 and so the guidance means the solicitor should not act in drafting the will unless the client has taken independent legal advice.
Don’t do this answer: He should advise the client to seek separate advice on the legacy, and then draft the will to include the legacy.
Because: Option A is not the best answer because it is not enough to advise the client to seek advice: the client should obtain this advice.
Quick Q:
A wealthy woman has a large estate and her affairs are complex. She seeks legal advice and asks her solicitor to draft her will in accordance with her instructions. The woman also appoints the solicitor as executor of her will.
Under the terms of the will, the assets of the estate will pass to the woman’s children who do not get on well and who are often in disagreement over matters.
Which of the following best explains the position in relation to the solicitor being appointed as executor of the will?
Appointing the solicitor as executor is beneficial because of the personal circumstances of the woman and her estate.
Option C is the best option because as the woman’s affairs are complex, and there are potential disputes in the family, it may be beneficial for the client to appoint her solicitor as executor.
A testatrix gives instructions to her solicitor to draw up a will leaving her property to be divided equally amongst such of her grandchildren as are living at her death. The testatrix has three children, the eldest two of whom have children of their own (the testatrix’s grandchildren). She also leaves instructions in writing that the solicitor can ‘deal’ either with herself, or any of her children (all adults with full capacity) on the matter of her will.
Several months later the testatrix is now frail and in ill-health. Feeling guilty that her youngest child has no children of his own and therefore would not gain any benefit from his mother’s estate, the testatrix tells her youngest child that she wishes to change her will to leave a pecuniary legacy of £100,000 to him. The youngest child emails the solicitor, instructing her to prepare a codicil to the will to that effect.
Should the solicitor accept the instructions and draw up the codicil?
A-No, because the instructions do not come from the testatrix herself so this would contravene paragraph 3.1 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
B-Yes, because the instructions come from one of her children, i.e. a person who the solicitor has been authorised to deal with on the matter of the testatrix’s will.
C-No, because although the testatrix has authorised her children to deal with the will, she has not specifically authorised them to provide instructions on her behalf.
D-Yes, because there is nothing to suggest that the testatrix was acting under undue influence when she spoke of wishing to add a codicil to her will.
E-No, because the instructions do not come from the testatrix herself so this would contravene Principle 7 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Option E is correct. Despite paragraph 3.1 of the Code of Conduct, in the case of a will the solicitor should not take instructions from anyone but the client. The dangers of misunderstanding and/or deceit mean that it would not be in the best interests of the client (principle 7) to take instructions from an intermediary.
Option A is wrong because paragraph 3.1 requires that solicitors only act for clients on instructions from the client or from someone properly authorised to provide instructions on their behalf, so the fact that the instructions do not come from the testatrix herself would not automatically contravene paragraph 3.1.
Option B is wrong because although the testatrix has authorised her solicitor to ‘deal with’ any of her children on the matter of her will, this is insufficiently precise to amount to proper authorisation to them to ‘provide instructions on her behalf’.
Option C is wrong because even though the testatrix has not specifically authorised her children to ‘provide instructions on her behalf’, the solicitor should not rely on paragraph 3.1 in the context of wills anyway. This is because in the case of a will it would not be in the best interests of the client to take instructions from anyone but the testator/testatrix themselves.
Option D is wrong because although it is true that there is nothing in the facts to suggest the testatrix was under undue influence (ie her ‘freedom of choice was overcome by intolerable pressure whilst her judgement remained unconvinced’) this is not relevant to the question of acting on instructions from a third party.
Paragraph 3.1:
You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do. However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client’s best interests.
Principle 7:
in the best interests of each client.
