WAE - Wills: Professional Conduct

What are the requirements for providing a competent service in will drafting?

- Draft wills promptly to avoid risk of intestacy

- Comply with common law obligations of care and skill (to avoid negligence claim)

- must also be able to advise on trust and tax implications

What are the common law duties owed to clients when preparing their will?

- duty to prepare will with due skill and care, and within a reasonable time

- duty to draft a valid will that gives effect to T's intentions

- duty to advise a client on how to actually execute their will

What will happen if T fails to execute a valid will that gives effect to their intended aims due to sol's breach?

the solicitor may be liable to the testator's intended beneficiary.

Does a solicitor need to advise a client on how to execute their will?

Yes - caselaw found that a solicitor can be negligent by simply leaving a will with the testator to be executed and witnessed and to do no more.

- must tell them how to sign it so it takes effect

What are the guidelines regarding gifts to solicitors in a will?

- Avoid acting if there's an own interest conflict

- Refuse to act if client proposes a significant gift to you, family, or firm members

- Recommend independent legal advice for the client in such cases

What is the effect on presumption of knowledge and approval when there is a gift to a solicitor beneficiary?

removes the presumption

Can you take instructions from X on drafting Y's will?

- can take instructions from a third party if they are properly authorised by the client

- must be alert to risk of undue influence or fraud

What level of competence is required by the Code?

- You ensure that the service you provide to clients is competent and delivered in a timely manner

- You maintain your competence to carry out your role and keep your professional knowledge and skills up to date

What duty does a solicitor have regarding client's capacity?

- CCS 3.4: You consider and take account of your client's attributes, needs and circumstances

- must be alert to any indication of lack of capacity

- should retain evidence of capacity in case this is later challenged

- if in doubt, must follow the Golden Rule by getting medical confirmation of their capacity

the rule in Hawes v Burgess is that if an experienced solicitor had made a contemporaneous attendance note recording their view that a testator had capacity...

...it would require strong evidence for the court to find otherwise.

How should a solicitor get information from a client on what they want for their will?

- written information provided via a checklist/questionnaire

- but will usually also need a full personal interview

- must also get written instructions from the client before they act

What steps should be taken to minimise risks related to IPFDA 1975 claims?

- Take full details of all family members and dependants

- Check ancillary relief orders for former spouses or civil partners to see if IPFDA claims have been barred for them

- Consider termination of maintenance for non-immediate family members, and make record of any termination

- be aware that social services can claim on behalf of disabled family members

- Obtain written statements for exclusion of potential applicants, but advise clients that IPFDA 1975 claims cannot be entirely prevented

Which life events should trigger a review of the will?

- marriage

- divorce

- 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.