Workshop 8: Professional Conduct

Question 1

What’s the name of the SRA regulation solicitors must comply with when taking instruction for a will?

Answer 1

SRA Code of Conduct for Solicitors (‘CCS’)

Question 2

Who must a solicitor take instruction for a will from according to CCS 3.1?

Are there any exceptions?

Answer 2

From their client only

Third parties authorised by the vlient to provide instructions

Question 3

TRUE OR FALSE

Wills made under undue influence or as a result of fraud will not be valid

Answer 3

True

Question 4

What is the associated risk of CCS 3.1 when meeting with a couple or member sof the same family?

Answer 4

That the solicitor will take instructions from unauthorised persons

Question 5

What is a solicitor required to do when drafting a will in respect of CCS 3.2 and ‘providing a competent service’?

Answer 5

To be competent to advise on all aspects of the client’s retainer incl. tax and trust implications

Question 5

What does ‘considering and taking account of your client’s attributes, needs and circumstances’ according to CCS 3.4 look like?

Answer 5

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

Question 6

What happens in the event that testamentary capacity cannot be confirmed?

Answer 6

A will should not be prepared

Question 7

What is the exception to a will not being prepared in the event that testamentary capacity cannot be confirmed?

Answer 7

A statutory will can be prepared following an application to the Court of Protection under s. 16 Mental Capacity Act 2005

Question 8

What must be obtained from the testator if their testamentary capacity is doubted?

Answer 8

Their consent must be obtained to approach their medical practitioner to confirm capacity and make record of the findings

Question 9

What is known as ‘the golden rule’?

Answer 9

Their consent must be obtained to approach their medical practitioner to confirm capacity and make record of the findings

Question 10

What two things should be kept regarding a testator whether or not there are concerns regarding testamentary capacity?

Answer 10

1.A detailed file note of the client’s instructions and
2. Express statement regarding solicitor’s assessment of the client’s testamentary capacity

Question 11

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?

Answer 11

Recommended that the solicitor refuses to act for them

Question 12

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’?

Answer 12

If the client takes independent legal advice

Question 13

When may a gift be ‘significant’ in value according to CCS 6.1?

Answer 13

In itself for when considering the size of the testators estate

Question 14

What are some good practices when taking instructions from a client to draft a will?

Answer 14

• Having a full (not only checklist) personal interview with them
• Obtain written confirmation from client on terms of instructions

Question 15

What are some common law duties solicitors should be aware of when drafting a will?

Answer 15

• 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

Question 16

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?

Answer 16

Practitioner may be liable to the testator’s intended beneficiary

Question 17

What is a very important issue to consider when taking instructions from a client when drafting their will?

Answer 17

A claim may be made against the client’s estate under IPFDA 1975

Question 18

What should a solicitor do to ensure that risks of claims against a testators estate are minimised and ensure full advice is givne?

Answer 18

• 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

Question 19

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)?

Answer 19

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

Question 20

TRUE OR FALSE

Claims against a testator’s estate under IPFDA 1975 are guaranteed to fail

Answer 20

No Ilott v The Blue Cross and others [2017] UKSC 17

Question 21

TRUE OR FALSE

It is possible to prevent a future claim being made against a testator’s estate under IPFDA 1975

Answer 21

False - it is not possible

Question 22

What are some good practices regarding the reviewing of wills?

Answer 22

Events ranging:

1. Marriage or civil partnership;
2. Divorce or dissolution of civil partnership;
3. Birth of children;
4. Death of close relatives/beneficiaries;
5. Substantial change in the value of assets;
6. Recent inheritance of their own; and
7. Moving or acquiring assets abroad.

Question 23

Why is it good practice that wills are reviewed at regular interviews?

Answer 23

To take account of tax changes/changes in testator’s general financial situation