Drafting and preparation of wills
Issued on 6 May 2014 (updated 11 July 2014)
This guidance does not form part of the SRA Handbook and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions.
Who is this guidance relevant to?
This guidance is relevant to all regulated persons involved in the drafting and preparation of wills.
The purpose of this guidance
This note reminds regulated persons of their professional duties when drafting and preparing wills for clients and the potential issues which managers and the COLP (Compliance Officer for Legal Practice) may wish to address in considering whether the firm has appropriate systems in place to achieve compliance. You will need to exercise your judgement in deciding how you achieve the right outcomes for your clients, bearing in mind the Principles and Outcomes set out in the SRA Handbook.
Will writing research
The SRA, the Legal Services Board, the Legal Services Consumer Panel and the Office of Fair Trading commissioned research from IFF Research into the consumer experience of will writing services. This research included a shadow shopping exercise in which some 101 wills bought by real consumers from a variety of provider were assessed by a panel of experts. Shadow shopping is similar to mystery shopping but using real consumers rather than professional shoppers. In the shadow shopping exercise, of 41 wills drafted by solicitors, some 9 were failed in terms of the quality of the will.
Wills that were assessed as failed, did so for one or more specific reasons, including:
- Inadequacy – where the content of the will does not account for an estate fully, fails to make adequate provision or neglects to take certain outcomes in to consideration. It also includes wills which are legally invalid;
- Requirements – where the client's requests have not been met (as specified in the testator questionnaire) through omission or conflicting specification;
- Legality – where the actions specified in the will are potentially illegal;
- Inconsistency – where the language, logic and/or content of the will is contradictory;
- Detail – where items, people and requests are described in insufficient detail; and
- Presentation – where the language and format of the document is lacking.
The results of the research give rise to concern about the standard of drafting of wills by some solicitors. For this reason we consider it helpful to introduce guidance reminding regulated persons of the relevant professional duties and signposting to guidance outlining best practice.
The most relevant Principles in this situation are that you must
- act in the best interests of each client;
- provide a proper standard of service to your clients;
- behave in a way that maintains the trust the public places in you and in the provision of legal services
You must achieve the Outcomes in Chapter 1 (Client Care) of the SRA Code of Conduct 2011 in relation to services you provide and the information that you give to clients and potential clients, and in particular; O(1.2), O(1.4), O(1.5) and O(1.12).
In the context of the IFF research referred to above, it is of particular importance to take care to take full instructions and take account of each client's needs, wishes and circumstances.
Appointment of your firm or others in your firm as executors
If a client wishes to appoint you, your firm or others in your firm as executors in a will you are drafting, this is not inherently improper. It is ultimately the client’s choice, however:
- You must not exploit your client's lack of knowledge for you own advantage by leading the client to believe that appointing a solicitor is essential or indeed the norm.
- You have a duty to act in your client's best interests. It would not therefore be proper to encourage the client to appoint you or your firm unless it is clearly in the client's best interests to do so. Whilst it may be beneficial to appoint a solicitor to act as an executor in certain circumstances (e.g. where the client's affairs are complex, or there are potential disputes in the family or all the beneficiaries are minors) there may be no advantage where, for example, the estate is small or straightforward. A professional executor is likely to be more expensive than a lay one and the client should be advised accordingly. Appointment of you or your firm should not be presented to clients as the default position either in on line or face to face services.
- Before drafting a will which appoints you or your firm as executor(s), you should be satisfied that the client has made the decision on a fully informed basis. You should therefore:
- explain the options available to the client
- ensure the client understands that the executor(s) do not have to be professionals; that they may be a family member or a beneficiary under the will; and that lay executors can choose to instruct a solicitor to act for them if this proves necessary and will be indemnified out of the estate for the solicitors' fees.
- document the advice given concerning appointment of executors and the clients decision on the file.
Management of your business
You must achieve the Outcomes in Chapter 7 of the Code of Conduct, particularly; O(7.2), O(7.3), O(7.6) and O(7.8).
You will need to ensure that staff providing will drafting services are properly trained and supervised and keep up to date with developments in the law. You should have appropriate quality controls in place including systems for sampling and checking work.
As a manager you should ensure that appropriate systems and controls are in place to ensure that your firm achieves the relevant outcomes by addressing issues such as:
- ensuring that the client has the necessary testamentary capacity and, where appropriate, that a doctor’s opinion is obtained to evidence this
- undue influence
- fraud (particularly where the service is provided on-line)
- ensuring that full information regarding the client's assets and immediate family is obtained and retained;
- that reasons for excluding any family member who might be expected to benefit are recorded and the implications explained to the client
- that wills are drafted in a timely manner, having regard to the particular circumstances (eg if the client is in hospital)
- that clients who do not return the will within a reasonable time are chased
- if the firm have not supervised the execution of the will, that all wills are checked upon their return to ensure that they have been properly executed
Gifts to you or someone in your firm
You are likely to be at risk under O(1.1) (you treat your clients fairly) if you draft a will for a client where the client wishes to make a gift of significant value to you, a member of your family or a member of your firm or their family, unless you are satisfied that the client has first taken independent advice with regard to the gift see IB(1.9).
The risk arises not only where the gift is of significant value in relation to the size of the client’s estate, but also where the gift is of significant value in itself, This is a potential own interest conflict and to achieve both O(1.1) and O(3.4), (that you do not act if there is an own interest conflict or a significant risk of an own interest conflict), you will usually need to cease acting if the client will not agree to take independent advice.
There may be some circumstances where you can continue to draft the will, notwithstanding that the client has not received independent advice – for example, 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. Nevertheless, whether it is appropriate to do so will depend upon the particular circumstances and you should consider carefully whether your ability to advise, and be seen to advise, impartially is undermined by any financial interest or personal relationship which you have. Bear in mind that if you have not followed an indicative behaviour, you may be asked to demonstrate how you have complied with the Principles and achieved the relevant outcomes.
Storage of wills
The Probate Service offers a low cost (currently £20 flat fee) service for storage of wills. It may be in a client's best interests to use this service rather than pay your firm or a bank for storage. Even if your firm does not charge for storage of wills, it may be more convenient for some executors if a will is stored by a central official service.
Other clients may prefer to have their will stored locally by you or their bank, where it can be retrieved readily and speedily by their executors or if they wish to alter their will. You should advise your client of the options available, but whatever your client decides, the key point is to ensure your client understands the importance of the executor(s) knowing where to find the will following the client’s death. You should therefore advise your client to
- ensure that the executors know of where to find the will;
- keep a copy of the will at home with the relevant details;
- keep you informed of their new address if the client moves; and
- keep the will under regular review.
If you require further assistance contact the Ethics Helpline.
Guidance on best practice in taking instructions for and drafting wills can be found in the Law Society Wills and Inheritance Protocol.
Another source of guidance is the Code for Will Preparation, published by the Society of Trust and Estates Practitioners.