Ethics & Professional Conduct In Wills & Estates Flashcards
Can a solicitor be an executor in a will?
Yes
When should a solicitor be more cautious and check instructions?
Elderly
With a relative
Mental health issue
What is the STEP code for Will Preparation in England & Wales?
Set of ethical principles setting out transparency and service expected when a will is drafted
Can a solicitor charge extra for being an executor in a will?
Yes
What does the STEP code stipulate about wills & executor?
The preparation of a will must not be conditional on the will drafter being appointed executor and/trustee.
What is an executor?
Someone appointed to look after the testators estate upon death
What is a trustee?
A person who is trusted with assets of a deceased for the benefit of another
Can an executor be a trustee also?
Yes
Are exclusion clauses permissible in a will?
Yes
How much can a trustee charge for their services?
Reasonable remuneration
How should a solicitor deliver their service?
In a timely and competent manner
How will costs be calculated when dealing with execution of wills?
Complexity
Number of beneficiaries
Nature of bequests
Trusts in the Will
Other matters will be considered also
What is testamentary capacity?
Must have the mental capacity to make a Will
If someone lacks mental capacity at the time of making a Will what can happen?
Will can be challenged and declared invalid
What is the case to test mental capacity?
Banks v Goodfellow
4 steps to deal with mental capacity arising:-
- Not prepare will if know/reasonably know of an issue with mental capacity
- Endeavour to ascertain if with assistance they can make a Will
- If in doubt seek medical advice (Capacity Assessment) medical expert must be present when making Will
- Keep written record of steps taken including reasons/advice
When a solicitor seeks medical advice on decision of mental capacity what is the rule called?
The golden rule
Who can be present when Will making?
Ideally no one but no member of family or intended beneficiary.
How long should it take to draft a Will?
From instruction an agreed date should be set if not.
7 days to send out draft
7 days from confirmation of agreed final version to be executed
If not draft send Will asking to be executed in 10 working days
STEP says expeditiously
There is no legal regulation of Wills but where can guidance be found?
The law society & STEP
If no Will what happens?
Intestacy rules apply
Who is not included in intestacy rules?
Cohabitants
Step children
Children not adopted
Where do executor get their authority from?
The Will
What needs to be obtained from the court on the death of a person?
Grant of Probate
(Mostly not always)
What does a grant of probate do?
Author to collect assets and distribute
What are the three steps to follow if a solicitor is left a gift in a Will when drafting it?
- Client obtains independent legal advice
- Make a record of advice and client has proved sought legal advice
- If client does not get advice solicitor must cease to act
Can a solicitor draft a Will for family members?
Yes but the STEP code advises against it
What is the Rule against self dealing?
Not buying or acquiring assets which they are an executor
Is the rule against self dealing strict?
Yes any transaction enters into this way is voidable
Does a grant of probate become a public document?
Yes
When can a solicitor be asked about the circumstances of a Will preparation and execution?
When a Will is disputed but must follow the steps
What is the case name of disclosing info about a Will?
Larke v Nugus
What steps need to be taken if asked to disclose info about a Will which is disputed?
- SOL does not have to comply but it’s best practice to do so
- Could be compelled to do so by the court
- If decides to respond and is an executor should provide a statement and supporting docs OR if not named as an executor seen consent from those who are
- Charges should be reasonable
How many executors should a Will have?
Usually two and max 4
Can have more than 4 but only 4 will be named on the GOP
