A fitting gesture

The Solicitors Regulation Authority (SRA) has updated its practice note on the preparation of a will, where assets are to be left to the solicitor preparing the will. It is not an uncommon occurrence as a strong relationship is often forged between solicitor and client. The practice note has sought to clarify the extent to which this should be reflected in a will and seeks to provide firmer guidance for practitioners.  

SRA Code of Conduct

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 of Conduct which underlines this. It builds on a separate note issued in May last year, which focuses on ethics in the drafting and preparation of a will where 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.

The society 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 - 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.

If a solicitor were to act in the preparation of such a will, a conflict of interest arises, and with it, suggestions of undue influence or fraud. More significantly, the courts will need evidence to show that 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. This evidence is crucial in unequivocally proving it expresses the true will of the testator.

Case studies

These issues have been indirectly played out in court, most noticeably in Westendrop v Warwick [2006] 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 a year earlier.

Similarly, in Scammell v Farmer [2008] 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 of undue influence, practitioners should be careful when taking instructions from a beneficiary. Reviewing instructions with the testator and ensuring that you can evidence knowledge and approval will
be essential.

A question mark still persists over the usage of the term 'significant gift'. The guidance does indicate that 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 of 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 practitioner's 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.

Nima Stepney is a solicitor at Brachers