Workshop 8: Professional Conduct Flashcards
What’s the name of the SRA regulation solicitors must comply with when taking instruction for a will?
SRA Code of Conduct for Solicitors (‘CCS’)
Who must a solicitor take instruction for a will from according to CCS 3.1?
Are there any exceptions?
From their client only
Third parties authorised by the vlient to provide instructions
TRUE OR FALSE
Wills made under undue influence or as a result of fraud will not be valid
True
What is the associated risk of CCS 3.1 when meeting with a couple or member sof the same family?
That the solicitor will take instructions from unauthorised persons
What is a solicitor required to do when drafting a will in respect of CCS 3.2 and ‘providing a competent service’?
To be competent to advise on all aspects of the client’s retainer incl. tax and trust implications
What does ‘considering and taking account of your client’s attributes, needs and circumstances’ according to CCS 3.4 look like?
Being alert to any indication that one’s client may lack testamentary capacity
And retaining evidence to support this, int he event the will is challenged at a later date
What happens in the event that testamentary capacity cannot be confirmed?
A will should not be prepared
What is the exception to a will not being prepared in the event that testamentary capacity cannot be confirmed?
A statutory will can be prepared following an application to the Court of Protection under s. 16 Mental Capacity Act 2005
What must be obtained from the testator if their testamentary capacity is doubted?
Their consent must be obtained to approach their medical practitioner to confirm capacity and make record of the findings
What is known as ‘the golden rule’?
Their consent must be obtained to approach their medical practitioner to confirm capacity and make record of the findings
What two things should be kept regarding a testator whether or not there are concerns regarding testamentary capacity?
1.A detailed file note of the client’s instructions and
2. Express statement regarding solicitor’s assessment of the client’s testamentary capacity
What must a solicitor do if ‘an own conflict of interest or significant risk of one’ arises according to CCs 6.1 when being offered a gift of significant value to them, their family member, firm member or their family?
Recommended that the solicitor refuses to act for them
What is the exception to refusal of acting in the event a client wants to gift a solicitor, family member, firm member or their family member a gift of ‘significant value’?
If the client takes independent legal advice
When may a gift be ‘significant’ in value according to CCS 6.1?
In itself for when considering the size of the testators estate
What are some good practices when taking instructions from a client to draft a will?
- Having a full (not only checklist) personal interview with them
- Obtain written confirmation from client on terms of instructions
What are some common law duties solicitors should be aware of when drafting a will?
- Duty to prepare will for client with due skill, care and within a reasonable time
- Obligation to draft a will that gives effect to testator’s instructions
- Requirement to advise client on how to execute their will
What happens in the even that the testator fails to execute a valid will which achieves their intended aims due to the legal practitioner’s breach?
Practitioner may be liable to the testator’s intended beneficiary
What is a very important issue to consider when taking instructions from a client when drafting their will?
A claim may be made against the client’s estate under IPFDA 1975
What should a solicitor do to ensure that risks of claims against a testators estate are minimised and ensure full advice is givne?
- Take full details of all family members
- Take full details of any dependants
- Check ancillary relief of former spouses/civil partners to see if IPFDA 1975 claims have been barred
- Obtain written record to evident termination of maintenance of those other than immediate family members
- Social services can pursue claim on behalf of someone with special needs; client needs to be aware if there’s a possibility of claim from such persons
What should happen in the event that your client doesn’t wish to include certain provision despite your advice (on risks of claims against their estate under IPFDA 1975)?
Get client to provide written statement explaining why no provision has been mad
e
This should be kept with original will and copies on client’s file
TRUE OR FALSE
Claims against a testator’s estate under IPFDA 1975 are guaranteed to fail
No Ilott v The Blue Cross and others [2017] UKSC 17
TRUE OR FALSE
It is possible to prevent a future claim being made against a testator’s estate under IPFDA 1975
False - it is not possible
What are some good practices regarding the reviewing of wills?
Events ranging:
- Marriage or civil partnership;
- Divorce or dissolution of civil partnership;
- Birth of children;
- Death of close relatives/beneficiaries;
- Substantial change in the value of assets;
- Recent inheritance of their own; and
- Moving or acquiring assets abroad.
Why is it good practice that wills are reviewed at regular interviews?
To take account of tax changes/changes in testator’s general financial situation
