[1]SRA: solicitor executors are not “essential or indeed the norm”
Solicitors must not exploit clients’ lack of knowledge about wills for their own advantage, the Solicitors Regulation Authority (SRA) has warned.
In a newly issued guidance note [2], the regulator said clients should not be led to believe that appointing a solicitor as executor was “essential or indeed the norm”.
Solicitors were reminded that they were under a duty to act in their clients’ best interests and “it would not be proper” to encourage the client to appoint them or their firm unless this was the case.
“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 online or face to face services.”
The decision to issue the guidance flowed from the work that went into the Legal Services Board’s to make will-writing a reserved legal activity. As part of this, a ‘shadow shopping’ exercise of 101 wills found that a quarter of wills prepared by both solicitors and will-writers were .
The SRA guidance said: “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.”
It warned solicitors that they were “likely to be at risk” of breaking the rules if they drafted wills for clients and the clients offered them gifts of “significant value”, which they accepted. Solicitors should be satisfied that in this situation, clients had taken independence advice.
“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,” the SRA said.
This created a “potential own interest conflict” and solicitors “will usually need to cease acting if the client will not agree to take independent advice”.
The regulator said there might be some circumstances where solicitors could continue to draft the will, such as if they were drafting it for their parents, but this would depend on the circumstances and whether ability to advise impartially was “undermined by any financial interest or personal relationship”.
The SRA said staff involved in drafting wills should be properly trained and supervised and “keep up to date with developments in the law”. In particular managers should ensure that systems and controls were in place to make sure clients had testamentary capacity and were not subject to undue influence or fraud, especially where the service was online.
On the storage of wills, the SRA said the Probate Service offered a low cost service, with a £20 flat fee, and it “may be in a client’s best interests to use this service rather than pay your firm or a bank for storage”.
The regulator said that even if law firms did not charge for storage, it may be more convenient for some executors if a will was stored by a central official service.