Professional conduct

Question 1

How is the third party instructions rule relevant when drafting wills?

Answer 1

• Will instructions from client only unless authorised
• Should be aware of risk (and avoid) someone giving instructions on behalf of another when meeting family members together
• Should be aware of risk of undue influence (makes will invalid)

Question 2

How is providing a competent service relevant when drafting wills?

Answer 2

• Should be competent to advise on all aspects of retainer inc tax/trust implications
• A will must be drafted promptly; delay gives rise to risk that testator dies intestate/with earlier valid will that does not reflect their wishes

Question 3

How are client’s circumstances relevant when drafting wills?

Answer 3

• Alert to any indications of testementary incapacity
• Should retain evidence to support capacity
• Golden rule (approach medical practicioner for confirmation of capacity and to make record of findings)

Question 4

If testamentary capacity is confirmed by medical practicioner, what should you do?

Answer 4

Make will but ask doctor to act as a witness to record findings

Attendnace note should be kept anyway detailing no concerns if none

Question 5

If testamentary capacity cannot be confirmed, what should you do?

Answer 5

A will should not be prepared (can only make statutory will following application)

Question 6

If the will has a gift for you - a solicitor - in it, do you have to refuse to act?

Answer 6

Recommended you should refuse to act out of conflict of interest where a client is proposing to make a gift of significant value unless your client takes independent legal advice

May be significant in itself or when considering size of estate

A small gift shouldn’t raise any problems

Question 7

Is there a presumption of a testator’s knowledge and approval where the person who prepared the will is a B?

Answer 7

No!

Question 8

What are the common law duties owed re professional conduct and wills?

Answer 8

• Prepare will with due skill and care within a reasonable time
• Practicioner liable to intended B if testator fails to execute a valid will achieving intended aims

Question 9

How should instructions to prepare a will be taken from a client?

Answer 9

• Personal interview to obtain full and clear instructions
• Checklists/questionnaires to ensure key information obtained (should not only rely on this)
• Client should be advised of alternative ways of disposing of estate

Question 10

What steps can be taken to minimise risk of claim being made against estate under IPFDA?

Answer 10

• Take full details of family members and dependants
• Check ancillary relief order if there is a former spouse/CP
• Whether maintenance to non-family member can be terminated
• If there is a possibility of a claim from someone with special needs (social services could pursue a claim)
• Written statement provided on why testator does not wish to include a potential applicant
• Advise it is not possible to prevent a future claim being made against estate under IPFDA or guarantee such claim will fail

Question 11

When should a will be reviewed (other than at regular intervals)?

Answer 11

• Marriage/CP
• Divorce/dissolution
• Birth of children
• Death of close relatives/Bs
• Substantial change in value of assets
• Recent inheritance of their own
• Moving or acquiring assets abroad