InsightsInsight - Wills and Probate - POSTED: February 9 2015
Practitioners accepting gifts in Wills
In January this year, the Solicitors Regulation Authority (SRA) updated its practice note on the preparation of a Will where assets are to be left to the solicitor themselves, updating the note published in October last year.
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In January this year, the Solicitors Regulation Authority (SRA) updated its practice note on the preparation of a Will where assets are to be left to the solicitor themselves, updating the note published in October last year. The situation is far from out of the ordinary: over many years a strong relationship between a solicitor and client may be forged. The note has sought to clarify the extent to which this should be reflected in a Will, and the body seeks to provide firmer guidance for practitioners.
Central to the guidelines is the condition that treating the client fairly should be front of mind, pointing to outcome 1.1 of the SRA Code which underlines this. The guidance in turn builds on a separate note issued in May on ethics in the drafting and preparation of Wills which indicated there is a potential conflict of interest in accepting a gift. The SRA was also keen to emphasise that clients should not be made to think that a solicitor executor was essential or the norm – those who do so could be exploiting the knowledge disparity between a client and solicitor.
This issue also appears to be at the heart of the SRA’s latest note. The SRA produced the May guidance after partnering with the Legal Services Board, Legal Services Consumer Panel and the Office of Fair Trading in a ‘shadow shopper’ exercise. The exercise found nearly 25 per cent of Wills drafted by solicitors did not meet certain quality controls.
The latest note addresses this to a certain extent, underlining that a practitioner should ensure the client has sought and received independent legal advice, without which you should consider refusing to act. Indeed, it is my firm’s policy to refuse to act in the preparation, although if a client insists, independent legal advice is advised.
If a solicitor were to act in the preparation of a Will a conflict of interest arises. There may be suggestions of undue influence or fraud. More significantly, the court will need evidence to show the testator knew and approved of the contents of the Will.
Knowledge and approval, therefore, needs to be established, and file notes will need to be comprehensive. The court, in examining the evidence, will not declare the Will valid unless that suspicion is removed and this evidence is crucial in proving it expresses the true Will of the testator.
These issues have been indirectly played out in court, most noticeably in Westendrop v Warwick  All ER (D) 248. In the case, the court ruled on the validity of the Will of the deceased who had appointed her claimant daughter and claimant son-in-law as executors. The court pronounced against a later Will which had been signed on a deathbed, which was significantly different to one signed the previous year. Similarly, in Scammell v Farmer  EWHC 1100 (Ch), the main beneficiary wrote out the Will instructions, and the solicitor prepared it in accordance with instructions (with the beneficiary paying). Although the judge rejected the claim that the main beneficiary had used undue influence, practitioners should be careful when taking instructions from a beneficiary. Reviewing instructions with the testator, ensuring you can evidence knowledge and approval, is essential.
A question mark still persists over the usage of the term “significant gift”. The guidance does indicate red flags should be raised at anything more than one per cent of the current estimated net estate, as well as anything with potential value, or beneficial to an individual beyond that justified by the solicitor-client relationship. A cut-off point or more than £500 is suggested.
The note moreover recommends that “great care” should be afforded when the gift is of uncertain value. This lingering uncertainty could force the practitioners’ hand and many will simply err on the side of caution and refuse gifts, although independent legal advice again plays a role in the decision process. Practitioners should ultimately consider gifts on a case-by-case basis taking into account the particular idiosyncrasies and circumstances of specific solicitor-client relationships.
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