Professional Conduct Flashcards
Third Party Instructions
CCS 3.1: You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do.
A solicitor must take instructions for a will from their client only, and should not take instructions from anyone else (unless a third party is authorised by the client to provide instructions). A solicitor should be aware of the risk of (and avoid) someone giving instructions on behalf of another when meeting a couple or members of the same family together.
A solicitor should be alert to the risk of undue influence. A will made under undue influence or as a result of fraud will not be valid.
Providing a competent service
CCS 3.2: You ensure that the service you provide to clients is competent and delivered in a timely manner.
CCS 3.3: You maintain your competence to carry out your role and keep your professional knowledge and skills up to date.
When preparing a will for a client you must be competent to advise on all aspects of the retainer, including any tax and trust implications. A will must be drafted promptly and a time delay gives rise to the risk that the testator dies intestate or with an earlier valid will that does not reflect their current wishes. These aspects of the CCS are pervasive and apply to all clients.
In addition to the CCS (breach of which may give rise to SRA sanctions) there are overlapping common law obligations which require a solicitor to exercise a duty of care and skill (breach of which may give rise to a claim for negligence against a solicitor personally).
Client’s circumstances
CCS 3.4: You consider and take account of your client’s attributes, needs and circumstances.
It is with reference to this rule that a legal practitioner should be alert to any indication that their client may lack testamentary capacity. A common legal challenge for anyone seeking to disregard the effect of a will is to claim that the testator lacked capacity when it was made, which if true, renders the will invalid.
A solicitor has a duty to ensure their client does have capacity and also to retain evidence to support this should the will be challenged at a later date.
When taking instructions for a will a solicitor must satisfy themselves the client has testamentary capacity.
If testamentary capacity is in doubt the testator’s consent should be obtained to approach their medical practitioner for confirmation of capacity and to make a record of the findings (known as the ‘golden rule’). The purpose of the assessment and the test for testamentary capacity should be explained to the medical practitioner so they are able to make a decision.
If testamentary capacity is confirmed: a will can be made but it is advisable to ask the doctor to act as a witness and to record their findings.
If testamentary capacity cannot be confirmed: a will should not be prepared. The only will which can be made is a statutory will following an application to the Court of Protection under s 16 Mental Capacity Act 2005.
Whether or not there are concerns, a detailed file note of the client’s instructions and an express statement regarding the solicitor’s assessment of the client’s testamentary capacity should be kept. An attendance note confirming there were no concerns may be useful evidence later on should the will be challenged. In Hawes v Burgess 2013 it was held that where an experienced solicitor had made a contemporaneous attendance note recording his view that a testator had capacity it would require strong evidence for the court to find otherwise.
Gifts to solicitors in a will
CCS 6.1: You do not act if there is an own interest conflict or a significant risk of such a conflict.
A client may wish to leave property to you or a member of your firm in their will. There is no mandatory rule which prohibits this, but there is a risk of a conflict of interest and it is recommended that you should refuse to act for a client where the client is proposing to make a gift of a significant value to you or a member of your family, or a member of your firm or their family, unless the client takes independent legal advice.
A gift may be significant in itself, or when considering the size of the testator’s estate.
NB: There is no presumption of a testator’s knowledge and approval where the person who prepared the will is a beneficiary. Those attempting to prove the will would have to prove that the testator did know and approve of the contents.
Common Law duties
You should be aware of:
a general common law duty to prepare a will for a client with due skill and care, and within a reasonable time (White v Jones).
the obligation to draft a will which gives effect to the testator’s instructions. Mistakes often only come to light after the testator’s death, when it is often too late to rectify the errors. If the testator fails to execute a valid will which achieves their intended aims because of the legal practitioner’s breach, the practitioner may be liable to the testator’s intended beneficiary.
the requirement to advise a client on how to execute their will. In Ross v Caunters the defendants were liable for not advising on the effect of s 15 WA in relation to a witness who was a spouse of a beneficiary. In Esterhuizen v Allied Dunbar Assurance it was considered that a solicitor would likely be negligent by simply leaving a will with the testator to be executed and witnessed and to do no more.
Good practice: Taking instructions
To obtain full and clear instructions to draft a will a personal interview with the client will usually be necessary. A solicitor should obtain written confirmation from the client that they want the law firm to act and the terms of the instructions.
Many firms use checklists or questionnaires to ensure key information is obtained from the client. However, a solicitor should beware of simply completing a checklist and not fully interviewing the client or listening to their instructions when ascertaining the client’s personal circumstances and goals.
Once relevant information has been recorded, the client should be advised of the alternative ways of disposing of their estate. It may also be relevant to give advice about lifetime gifts including tax planning matters.
Taking instructions: IPFDA 1975
One very important issue to consider when taking instructions is the risk that a claim may be made against the client’s estate under IPFDA 1975. The following steps should be taken to minimise the risks and ensure that full advice is given:
Ensure that you take full details of all members of the family and any dependants to enable you to provide full advice.
If there is a former spouse or civil partner, check the ancillary relief order to see whether IPFDA 1975 claims have been barred under s15 (which is normal where there is a clean break order).
If the deceased is maintaining someone other than immediate family members then consideration should be given as to whether that maintenance could be terminated. If so, ensure there is a written record to evidence the termination.
If there is the possibility of a claim from someone with special needs then the client needs to be aware that social services could pursue a claim on behalf of that person.
If there is a potential applicant that the client does not wish to include in the will despite your advice, then get the client to provide a written statement explaining why no provision has been made. The statement should be kept with the original will and copies kept on the client file and with the executors (if the client agrees).
Irrespective of the practical steps taken by a testator, clients should be advised that it is not possible to prevent a future claim being made against their estate under the IPFDA 1975 Act or guarantee that any such claim will fail.
In Ilott v The Blue Cross and others [2017] UKSC 17 the testator left the whole of her estate to charity and nothing to her only child (from whom she was estranged).
The testator in this case had left a note with her will explaining why she was dis-inheriting her adult daughter and making it clear she did not wish her to receive anything.
Despite this, a claim made by the testator’s daughter following her mother’s death was successful.
