Regulator aims to improve solicitors’ will writing

The guidance reflects the results of a 2011 research project, jointly funded by the SRA, the Legal Services Board, the Legal Services Consumer Panel and the Office of Fair Trading. This study included a ‘mystery shopper’ exercise in which 101 wills bought by genuine consumers were examined by an expert panel. Forty-one of the wills were drafted by solicitors, and the panel assessed nine of these as unsatisfactory – about the same proportion of failures as those produced by unqualified will-writers. The failings were not just of omission, incompleteness or inconsistency, but of writing legally invalid wills and even wills that specify illegal actions.

These findings, says the SRA, ‘gave rise to concern about the standard of drafting of wills by some solicitors". The new guidance aims to remind solicitor will-writers of their professional duties, and indicates some rules of best practice.

The guidance is more about professional ethics and behaviour than will-writing technique. For example, it states that solicitors should not lead the client to believe that they have to retain a solicitor to write their will, or even that it is the norm. Nor should they suggest that the default position for testator clients is to appoint the solicitor as executor, or that professional executors are needed at all. The risks of allowing a client to leave a legacy to the solicitor or one of his or her relatives is also noted.

It notes that a firm practising will writing should have quality systems in place, for example a process to ensure that the client has testamentary capacity. Steps should also be taken to verify the client’s assets and immediate family, and to avoid the risk of undue influence or fraud, particularly where the service is provided on-line.

Clients should also be invited to explain why they have excluded any relative who might have expected to benefit. If the firm itself does not supervise the execution of the will, it should check the will when it is returned to make sure it has been properly executed.

The guidance also notes that it may not always be in a client’s best interest to have the solicitor store the executed will. It points out that the Probate Service will store a will for a flat fee of GBP20.

• Both STEP and the Law Society have independently published codes of practice to encourage high-quality will writing.

Sources

• Law Society