It is always imperative to follow compliance guidelines and legislation when preparing a will with a client, in particular the Solicitors Regulation Authority (SRA) Code of Conduct 2011. However, if the client wishes to leave a gift to you or someone who is closely associated with you, there are safeguards you can put in place to protect your business.
The will writing client could be leaving a gift within their will to yourself, a member of your family, a business associate of yours, or a person associated with an employee at your firm. Those who fall under the category of “family member” may include any individual who is treated “like family” by the client.
Questions that may need to be raised with the client are if the proposed beneficiaries of the gifts are employees at your firm, or if the person to receive the gift has any connection to an employee.
You should also be aware of the implications that could arise from having a member of staff from your firm or a member of their family as a client, as well as if you are preparing a will for one of your own family members. If you are in any doubt over any issues that may occur, speak to your firm’s compliance officer.
It is considered reasonable to follow instruction given by a client who is related to a business associate, to leave an appropriate level of gift. Though in these circumstances, other possible beneficiaries should be taken into consideration and negative reactions that may be caused.
To do this thoroughly, you will need to make a note of full relationship circumstances of the client, explaining why each gift listed is proportionate to the receiver. It is advised you make formal documentation with the client, stating the decisions are their own and you have had no influence over their decision making.
Throughout the will writing process, it is recommended you advise your client to consult with your firm’s compliance officer or a qualified and experienced senior member of staff, in order to gain a balanced view. This should also be documented if carried out.
When a substantial gift is being given, it is advised you shouldn’t prepare the client’s will until they have sought independent legal advice, and has written confirmation of this.
Significant levels of gift that need consideration include:
- Anything valued at over £500.
- Anything more than 1% of the estimated value of the estate.
- Anything that may become high value following the person’s death.
When a gift is offered to you by the client, you can request for it to be left to a charity of your choice instead. However you may want to consult a compliance officer should this occur, especially if the client has no obvious connection to the chosen charity.
If you are the Compliance Officer for Legal Practice (COLP) or suitable experienced member of staff who is advising during will writing, you will need to carefully consider how the gift being given may be perceived by others. All relevant factors should be documented as evidence, throughout the decision making process.
Sole practitioners need to handle gifting with more in-depth examinations. The level of instructions you are able to take can be more limited, and opportunity for gathering evidence of the decision making is reduced.
The SRA Code of Conduct 2011 should be followed and can be referred to for guidance at any time. If any doubts are raised, the following options could be considered:
- Declining instructions.
- Having the will executed by an alternative firm or practitioner, in your absence.
- Independent legal advice can be sought by the client.
- Document in writing that the client is under no obligation to make a gift to you, and request a response in writing, stating the client would like to continue with the given instruction.
- Working alongside another firm or practitioner.
Remember that all evidence and documentation should be kept secure until after the death of the client, and the probate case is closed.
