Wills Professional Conduct Issues Flashcards
Third Party Instructions
- A solicitor must take instructions for a will from their client only and should not take instructions from anyone else (unless a third party is authorised to by the client and solicitor has no reason to suspect that the instructions do not reflect client’s wishes)
Risk of undue influence / duress
There is a risk when someone else is giving instructions on behalf of another or one party appears to have a great influence over the client of undue influence
- If a will is made under undue influence, duress or fraud, it is NOT VALID
- If there are concerns, the solicitor should not proceed until they have confirmed with client directly that the instructions reflect their wishes
Providing a competent and timely service
- Competent to advise on all aspects (tax / trusts)
- A will must be drafted promptly - timely manner. Otherwise, risk that client dies intestate or with a will that does not reflect their wishes
Exercise duty of care and skill
- Duty to prepare a will in accordance with the client’s instructions and properly advise the client on execution
- The solicitor may be liable after the client’s death to an estate beneficiary who suffers a loss as a result of the solicitor not preparing the will in accordance with instructions
Testamentary capacity
- Be alert to if the client may lack testamentary capacity as this is a common legal challenge for anyone seeking to disregard a will
- Duty to ensure the client has testamentary capacity and keep evidence of this
- Best practice when taking instructions from a new client is to ask questions to establish the client meets requirements of Banks v Goodfellows
If capacity is in doubt:
- Need to obtain client’s consent to approach a medical practitioner for confirmation of capacity
If capacity cannot be confirmed:
- A will should not be prepared. Can only make a statutory will following application to court under s16 Mental Capacity Act
Gifts to solicitors in a will
- This poses a risk of a conflict of interest
- It is recommended to refuse to act for a client who is proposing to make a gift of significant value (to solicitor, member of firm or family)
- The solicitor should refuse to act unless the client takes independent legal advice regarding the gift
Customer due diligence
This should be carried out in relation to trustees and beneficiaries of the trust
Advising a client on how to execute the will
- Advise the client that if the will was validly executed but one of the witnesses is a beneficiary, the beneficiary who witnesses the will cannot receive their inheritance
Acting in the client’ best interest
There may be circumstances where there are two solicitors acting (e.g., for a couple both preparing separate wills)
- Advise the client that we take their instructions, not their partners, and our duty is to act in their best interests, not those of their partner
Confidentiality
Should not provide confidential client documents to anyone else
- If disclosure is required/requested, we must obtain permission from the client before anything confidential is disclosed
Confidential documents include:
- a draft will
- list of assets of the client
Procedural deadlines
If advising a client on bringing a claim against an estate / against the will (e.g., such as IPFDA claim), need to advise on any time pressure
- Claim under IPFDA must be brought within 6 months of obtaining the grant of representation
Contentious probate
Solicitors are under a duty to advise clients on the cost of funding litigation
- Solicitor’s costs
- No guaranteed success
- Risk of being ordered to pay opponent’s fees if unsuccessful
- Balancing the likely award against the cost of bringing the claim
- Legal costs are difficult to predict and may escalate
- Make clear what the legal costs are for the client
