eric-whitehead
01538 755 761
Introduction
Who should read this practice note?
Practitioners preparing a will for a client who wishes to leave a gift to:
- the person preparing the will or supervising its preparation
- a member of the family of the person preparing or supervising the preparation of the will
- a partner or employee of the business entity preparing the will
- a member of the family of that partner or employee
What is the issue?
Preparing a will for a client can be a sensitive area.
It is easy for those who receive less than they were expecting to allege improper influence, particularly if the client is giving property to you or someone connected with you.
Your firm should therefore have safeguards in place to protect it from such allegations.
Also, the validity of part or all of the will may be affected.
For example, in Wintle v Nye [1959] 1 WLR 284, the House of Lords decided a testatrix did not know and approve those gifts in her will which benefited the solicitor who had prepared the will for her, although the rest of the will was admitted to probate.
Regulatory issues
Unlike the Solicitors Regulation Authority (SRA) Code of Conduct 2011, the 2019 SRA Codes of Conduct do not refer specifically to the situation where the solicitor is preparing a will that benefits themselves or someone connected to them.
However, some of the SRA Principles are relevant to this situation, as are some of the paragraphs in the Code of Conduct for Solicitors, Registered European Lawyers (RELs) and Registered Foreign Lawyers (RFLs).
The SRA Principles comprise the fundamental tenets of ethical behaviour that the SRA expects from those it regulates.
A person or body that is regulated by the SRA is expected to act with honesty (Principle 4), with integrity (Principle 5) and in the best interests of each client (Principle 7).
Solicitors and others are also expected to apply the standards of professionalism described in the SRA Codes of Conduct.
Under paragraph 1.2 of the SRA Code for Solicitors, RELs and RFLs you must not abuse your position by taking unfair advantage of clients or others, and under paragraph 6.1 you must not act if there is an own interest conflict or a significant risk of such a conflict (an ‘own interest conflict’ is a conflict between your interests and those of your client).
When preparing a will for your client, therefore, you must act with honesty and integrity, and you must act in the best interests of your client.
You must also not abuse your position and take unfair advantage of your client, and you must not act if your interests conflict with those of the client.
If the client leaves a substantial gift to you, a member of your family, or a person connected with you, there is a danger that your own interests will have conflicted with the best interests of the client, and the allegation could be made against you that you had taken unfair advantage of the client.
The SRA has issued guidance on the drafting and preparation of wills. This includes guidance on gifts to you or to a member of your business.
This guidance indicates that where a client wishes to make a gift of significant value to you, a member of your family, an employee of your business, or a member of their family, you should satisfy yourself that the client has first taken independent legal advice.
Guidance on how to decide if a gift is ‘significant’ is provided in section 4.1 below.
Preparing the will
There may be circumstances in which it would be appropriate to accept instructions from a client who is related to an employee or partner and who proposes a significant gift to that employee or partner or a member of their family in their will.
However, you should take into account the expectations of others who would be reasonably expected to benefit because of their relationship to the deceased.
When making wills for clients, you would normally make a detailed file note recording the full circumstances of the client’s family.
The note should also explain why any significant gifts to you or the other persons mentioned in this note are appropriate given the circumstances.
It may be necessary to warn your client that the gift might be questioned later by people who suspect that you took advantage of your, or your staff member’s close relationship with the client to influence the gifts made by the client, as improper influence could result in a gift being declared void.
Even if you consider the instructions to be appropriate, before preparing the will you should consider consulting:
- your firm’s compliance officer for legal practice (COLP)
- the senior responsible officer (SRO) if your firm is a member of the Wills and Inheritance Quality Scheme (WIQS), or
- a senior experienced practice member
The person consulted must consider potential conflicts of interest and the best interests of the client.
The COLP, SRO or a senior experienced practice member should consider whether in the circumstances you should not act, unless the client:
- obtains independent legal advice from someone completely unconnected with your firm, and
- provides written confirmation that they have obtained such advice
However, in some circumstances it may be sufficient for the client to confirm in writing that they do not wish to obtain independent legal advice.
This will avoid clients incurring the costs of two professional advisers in situations where it is not warranted.
For further matters the COLP, SRO or a senior experienced practice member should consider, see section 4.5 of this guidance.
The COLP, SRO or a senior experienced practice member should make sure a written note is kept of the decision recording whether or not it is appropriate to act and any further steps to be taken.
You should place the note with the file.
In some circumstances, it may be appropriate for you to continue to draft the will even if the client has not received independent legal advice.
The SRA guidance on drafting and preparation of wills gives the example of a situation where you are drafting wills for your parents and the survivor of them wishes to leave the residuary estate to you and your siblings in equal shares.
Guidance
What is a significant gift?
An amount may be significant in itself or as a proportion of the client’s net estate.
The SRA ethics guidance on the drafting and preparation of wills does not provide any indication of a monetary amount which would be considered as ‘significant’.
You should carefully consider any gift to determine whether it may be considered significant in the particular circumstances.
You can assume that the following gifts would be considered significant:
- anything worth more than 1% of the client’s current estimated net estate
- anything that might become more valuable at some point in the future, especially after the death of the client, and
- anything that provides a benefit to an individual which is more valuable than their relationship to the deceased reasonably justifies
You should exercise great care if the proposed gift in question is a specific item or items with an uncertain value, like a painting or piece of furniture.
If you are in doubt, ask your COLP, SRO or a senior experienced practice member.
You should refer any other proposals which might appear unusual in the circumstances to your firm’s COLP, SRO or a senior experienced practice member.
For example, a client proposes to make a gift to a charity that you support but with which they have no previous connection.
How will I know if a proposed beneficiary is employed by or related to someone employed by the firm?
When taking instructions for a will, you may wish to ask the following questions:
- do any of the people to whom you wish to leave property work for this firm?
- are any of the people to whom you wish to leave property related to, married to or have a close connection with people who work for this firm?
Does this policy mean that I cannot prepare a will for a close family member if it benefits me or a family member?
You will normally be able to prepare a will in your own time without charge for a family member, even if it benefits you or a family member, if the benefits received are not disproportionate.
If there any compliance concerns, then the COLP, SRO or a senior experienced practice member may wish to note these in your firm’s records.
If you use any of the firm’s time or resources, in preparing the will, you may want to check this with the firm’s COLP, SRO or a senior experienced practice member.
What should a COLP, SRO or a senior experienced practice member consider?
Factors the COLP, SRO or a senior experienced practice member should consider will vary depending on the circumstances of the case, but should include:
- how the proposed will may be perceived by others who benefit, or might reasonably have expected to benefit, from the client’s estate, and
- whether the person preparing the will and the firm have adequately documented the factors which led them to accept instructions
That decision should be properly recorded, and details kept with the will or relevant file so that they can be produced later if needed.
For more information see our practice note on file retention: wills and probate.
What if I am a sole practitioner?
If you are the sole owner of the business, you should consider whether it is appropriate to act, bearing in mind your responsibility to avoid conflicts of interest and act in the best interests of your client.
As a sole practitioner, the circumstances under which you can take instructions for a will may be more limited because of the obligations placed on you by the SRA Standards and Regulations 2019.
You will be expected to be able to demonstrate your compliance with the same Principles and Codes of Conduct as solicitors in larger firms, but your evidential opportunities may be reduced as you are the solicitor with the conduct of the client’s matter and the responsibilities of the COLP or SRO.
However, if, after assessing matters and your obligations, you choose to act, you should keep detailed records and evidence of how you have complied with your regulatory obligations (see section 2 above).
Whilst each situation should be risk-assessed individually, you may also wish to consider the following:
- declining the instructions
- having the will executed by the client at the offices of another firm of solicitors in your absence
- ensuring the client obtains independent legal advice from someone unconnected to your firm, and
- writing to the client explaining that there is no obligation on them to make a gift to you and ask them to confirm in writing that they wish to continue with the gift
As with complaints handling best practice, sole practitioners may wish to agree arrangements with another sole practitioner or firm to assist with the above.
For more information, see our practice notes on:
More information
Further guidance
Drafting and preparation of wills
Wills and Inheritance Quality Scheme
Practice Advice Service
We provide support for solicitors on a wide range of areas of practice.
Contact the Practice Advice Service on 0207 320 5675 from 9am to 5pm on weekdays or email practiceadvice@lawsociety.org.uk.
SRA professional ethics helpline for solicitors
The SRA’s professional ethics helpline for solicitors offers advice on the SRA Standards and Regulations to solicitors, trainees and solicitor apprentices. You can choose to remain anonymous.
Call 0370 606 2577 from 10am to 1pm and 2pm to 4pm, Monday to Friday.
Chat with the team online between 9am and 10am, 1pm and 2pm, and 4pm and 5pm, Monday to Friday (closed on Wednesday).
Acknowledgements
This practice note has been developed by our Wills and Equity Committee.
