Good practice

Some of you will have seen the Law Society's practice note on wills, issued in October 2014; fewer will have seen it revised on 24 December, when most attention was elsewhere. There were uncertainties with the drafting of the first two editions, which I, and others, brought to the Society's attention. The note's revised edition, published on 20 January 2015, sensibly corrects most of the issues. While also referring to lifetime gifts, I focus here solely on wills.

Clients proposing to leave a 'significant gift', which, according to section 4.1, includes 1 per cent or more of an estate, to the will drafter, a partner or employee of their business, or a family member of any of these, are covered. Most of the details are in section 2 of the practice note, but I will refer to some other sections where appropriate in this article.

Will drafting practice

So, what does it mean for your will drafting practice? The practice note is 'good practice', not law, with most references to what you 'should', not 'must', do! However, following these directions 'will make it easier to account to oversight bodies for your actions'.

The context is provided by the SRA principles 2, 3 and 6, to act with integrity and independence and to maintain public trust, showing that some people feel solicitors do not always uphold these principles at present. All firms need to review their procedures to be clear about how to follow this guidance, and where they do not, to show that they still comply with the SRA principles.

The next step is identifying who is responsible for considering these issues, and deciding how they are dealt with. The practice note refers to three possibilities throughout. If your firm is in the Wills and Inheritance Quality Scheme (WIQS), you will have a senior responsible officer (SRO), whose responsibilities will now include having regard to this note. Otherwise, each firm has a compliance officer for legal practice (COLP) but, recognising that it would be difficult for a COLP alone to deal with all these details, appointing a 'senior experienced practice member' is a further option to consider. While this is not mentioned in the note, it would be sensible to have at least two such senior practice members appointed to cover holidays, and in many firms this will be better than a COLP who doesn't understand this work. The factors that this person should consider are set out in section 4.5.

Five-stage process

A five-stage process for the fee earner to go through with the person responsible (whichever of the three it is) is in effect laid out by the practice note:

1. When taking instructions, you should now (following section 4.3) ask every client whether any beneficiary works for your firm, or is related to or has a close connection with a partner or employee. Asking the question appears to be sufficient; if the client doesn't know, it's not incumbent upon you to make enquiries. With any positive answer, further consideration is required as follows.

2. Any fee earner considering it appropriate to accept instructions from a client who is related to a partner or employee, to whom they propose to leave a significant gift, must (following section 2) take account of the reasonable expectations of others. Detailed file notes explaining why the significant gifts are 'appropriate given the circumstances' should be made. Clearly, gifts that are proportionate (as the note says) can make sense, for example, all other things being equal, if an estate treats all children (or their children) the same. The note helpfully refers to the SRA guidance on drafting wills, which has such an example.

3. "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." This is improved wording compared with "you should warn your client" (which was in the earlier note), and allows you to take a different approach, depending upon whether the gifts are clearly appropriate or unbalanced and potentially unfair. Now you can decide when it is necessary - but it would be sensible to have an office policy.

4. If you consider the instructions to be appropriate, before drafting you should consult the COLP, SRO or senior person, who should then consider whether or not you should act without the client obtaining independent legal advice and confirming in writing they have done so.

5. The COLP or SRO should prepare a written summary of the matters considered, the decision, and any further steps to be taken, which you should place with the file.

Section 4.4 asks whether this means you cannot prepare wills for close family members if the will benefits you or your family. Curiously, this refers to preparing a will in your own time, without charge, when surely an obligation is owed in any event. It then sets a different test from above: that "the benefits… are not disproportionate" and the COLP or other responsible individual has noted any compliance concerns in the firm's records. It then says that if using the firm's precedents, "you may want to check with" the COLP.

There are special provisions for a sole practitioner in section 4.6, but all will drafters should be reviewing practice. SJ

John Bunker is head of private client knowledge management at Thomas Eggar