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File retention: wills and probate

6 October 2011

1. Introduction

1.1 Who should read this practice note?

Managing partners, probate and trust practitioners and other practice staff involved in the retention, archiving and storage of original wills and files relating to the preparation of wills, lifetime gifts and estate administration.

1.2 What are the issues?

It is essential that firms have a clear policy on the storage and destruction of the original files and documents.

With increasing longevity and diversity in relationships there are more disputes arising after death, as well as claims in respect of lifetime gifts.

Challenges to wills (especially if there are unequal gifts to children) or previous lifetime gifts or disposals of property at an undervalue often arise many years after the original advice was given.

You should keep records with the will which explain that appropriate advice was given to the client at the time of making the will. Without adequate records you or your firm may not be able to defend its position.

It is also essential to know who owns the various original documents and papers, especially after the death of your client.

1.3 Professional conduct

The following sections of the SRA Code are relevant to this issue:

  • Chapter 1 on Client care
  • Chapter 4 on Confidentiality and disclosure

1.4 Status of this practice note

Practice Notes are issued by the Law Society as a professional body for the benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. Solicitors are not required to follow them.

They do not constitute legal advice and, while care has been taken to ensure that they are accurate, up-to-date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

1.5 Terminology in this practice note

Must ? a specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should ? good practice for most situations. If you deviate from this, you must be able to justify why this is appropriate, either for your firm, or in the particular retainer.

May ? a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual firm, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.

2. SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

When thinking about how to meet the outcomes in chapters 1 and 4 in the Code/Handbook, you must consider the principles which apply across the Handbook including the Code. You should always bear in mind what the ten principles are and use them as your starting point when implementing the outcomes.

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3. Who owns the file?

An original will stored by you is the property of the client and after the client's death, it is the property of the estate.

The file also belongs to the client, subject to a limited number of documents which can be removed and belong to the firm.

Documents which come into existence during the retainer fall into four broad categories:

  1. documents prepared by you for the client and which have been paid for by the client belong to the client;
  2. documents prepared for the firm's own benefit or protection for which the client has not been charged belong to the firm;
  3. documents and letters written by the client to you where property passes to you on despatch belong to the firm;
  4. documents prepared by a third party during the course of the retainer and paid for by the client belong to the client (see Cordery on Solicitors for more details).

4. How long should files be kept?

4.1 Retaining original wills

You should store the original will until after the death of the client, or until you are able to return the original to the client.

Some firms keep wills indefinitely, while others have a policy of holding the original will for fifty years from the date of its creation. There is no absolute rule, but you should always err on the side of caution, even if you believe or know that a later will has been made.

Your retainer should confirm what will happen to the original will and other supporting documentation that is not your property.

See 4.2 Destroying original wills and 4.3 Supporting documentation.

4.1.1 If the will is revoked

Even if a will is revoked you should keep a copy in your records.

It is possible that in cases where a will is challenged, undue influence is alleged or where an Inheritance (Provision for Family and Dependants) Act 1975 claim is made an earlier revoked will may be produced as evidence of a settled or disturbed pattern of behaviour or thought by the testator.

See 8.1.2 Legislation for further details.

4.2 Destroying original wills

You should not destroy an original will until any risk of a claim has passed.

See 6. Limitation periods for further details.

4.2.1 If the will is revoked

Before destruction of any original will you must consult the client. You should inform them that occasionally the validity of a subsequent will or wills might be challenged and then a prior will might be proved as the last will of the deceased.

As the limitation period does not start to run until the testator has died (see 6. Limitation periods ), the general rules on limitations are of little relevance in this situation.

4.3 Retaining supporting documentation

Your retainer should confirm what will happen to the file. If your retainer is silent, you should contact your client and return any papers that you do not intend to retain.

There are three options you should consider:

  • storing the file and any other supporting documentation for as long as the will is stored;
  • reviewing the file and supporting documents so that the most important material is kept;
  • keeping an abstract with the original will setting out significant matters.

If you decide to review the file, you will have to decide whether to review soon after the file is closed, or several years thereafter when the file destruction is imminent.

Reviewing the file soon after the end of the transaction is beneficial as relevant issues will be easier to recall.

If the file is left to be reviewed at a later stage bear in mind that relevant information may have been forgotten, or that you may no longer be working at the firm leaving the review to be carried out by someone unfamiliar with the matter.

4.3.1 Evidence of identity

The Money Laundering Regulations 2007 require that for ?relevant business', evidence of identity is to be retained for at least five years after the business relationship ends and for details of a transaction to be kept for a five year period from the date on which all activities taking place in the course of the transaction were completed.

The making of wills is not relevant business although trust and probate work is relevant business for the purposes of the Money Laundering Regulations 2007.

For further information see the Law Society's anti-money laundering practice note.
See 8.1.1 Practice notes .

4.3.2 Documents relating to VAT liability

The requirement under schedule 11, paragraph 6(3) of the Value Added Tax Act 1994 should also be taken into account. This says that records and papers relevant to VAT liability have to be kept for six years.
See 8.1.2 Legislation for details

4.3.3 Documents recording contact with the client

You may also wish to keep a general file which records contact with a client and is not related to any major transaction, but contains all pertinent information about, for example, family dynamics or the intentions of the client.

You should not overlook such files when assessing what should be retained with the will. This general file should also contain meaningful abstracts of all relevant documents and major decisions.

4.3.4 Documents recording contact with the client

You should always keep a proper note of the advice that was given to the client together with details of the execution of the will/transfer if you were involved, regardless of whether or not you believe that there may be a subsequent challenge.

Even in situations where you have a good relationship with a number of members of a family, you should consider that you may not have the complete picture of family dynamics and finances.

Where there is an unusual disposal, such as a gift at an undervalue, or where the will leaves unequal shares to children, you should keep detailed records of the instructions and your advice.

See 4.5 Documents relating to lifetime gifts or transfers of property at an undervalue

You should consider issues of conflict not just when the instructions are given, but if accepted how those instructions might be perceived subsequently.

4.4 Destroying supporting documentation

Any supporting documentation that is not your property should not be destroyed without written permission from the client.

You may also wish to take note of the appropriate limitation period before deciding when to destroy the file and what if anything from the file you should retain, whether as an original or a copy.

Certain papers such as attendance notes and copy emails may later help to explain why certain actions were taken.

Prior to any destruction of papers relating to the making of the will and its associated advice you should consider Larke v Nugus [2000] WTLR 1033. For more information see the Law Society's practice note on Disputed wills.
See 8.1.1 Practice notes

If you destroy the file, you should keep a note with the will, so the absence of papers can be explained at a later stage to show that the destruction was carried out in accordance with good business practice.

4.4.1 If the client has made a new will

Even where you know or suspect that a client has made a new will, it is still possible that the validity of a subsequent will could be challenged so you should undertake a risk assessment of whether supporting documentation should be destroyed or copies kept where the originals have been sent to the client.

If the supporting documentation is to be destroyed you should advise the client that all supporting papers will be destroyed unless claimed and then keep a record of this notice.

4.4.2 If you cannot contact the client

If you cannot contact your client then you should document your efforts to trace the client and carry out a review before deciding whether to retain or destroy material.

You may wish to consider passing very old documents to a local authority archive as an alternative to destruction, but note the position regarding client confidentiality or legal privilege, in 6 below.

4.4.3 If the date of death is not known

The National Archives recommends that where personal data needs to be stored for the life of the relevant individual and the date of death is not known it should be held until that individual would have reached 100 years of age.

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4.5 Documents relating to the death of the first spouse or civil partner

For deaths on or after 9 October 2007, spouses and civil partners can transfer any unused Inheritance Tax nil rate band allowances. This means that any part of the nil rate band that was not used when the spouse or civil partner died can be transferred to the second spouse or civil partner for use on their death.

The transfer of unused nil rate band applies only on the death of the second spouse or civil partner, so there is no need to agree the amount that is transferable on the first death.

You will need to retain full details of the estate of the first spouse or civil partner so that the information will be available for the second spouse or civil partner. This information comprises:

  • a copy of the IHT400, IHT405 (C5 in Scotland) or full written details of the assets in the estate and their values;
  • death certificate of the first spouse/civil partner;
  • marriage or civil partnership certificate for the couple;
  • copy of the grant of representation (Confirmation in Scotland);
  • copy of the will, if there was one;
  • a note of how the estate passed if there was no will;
  • a copy of any Deed of Variation or other similar document if one was executed to change the people who inherited the state;
  • any valuation(s) of assets that passed under will or intestacy other than to the surviving spouse or civil partner;
  • the value of any other assets that also passed on the death of the first spouse or civil partner, for example jointly owned assets, assets held in trust and gifts made in the seven years prior to death;
  • any evidence to support the availability of relief (such as agricultural or business relief) where the relievable assets pass to someone other than to the surviving spouse or civil partner.

For more information see HMRC guidance on Transferring an unused Inheritance Tax threshold .

5. Storing files

5.1 Electronic storage

The same issues arise with electronic data as with other material, so you always need to consider limitation periods, ownership, confidentiality, privilege and make an adequate risk assessment prior to destruction. However electronic data is subject to further regulatory safeguards as set out in the Data Protection Act 1998.
See 8.1.2 Legislation for further details.

5.1.1 Data protection

The Data Protection Act 1998 allows you to retain personal data stored in an office or the information on file without breaching the Act for as long as necessary for one or more specified lawful purposes.

Personal data contained within files in paper format are subject to the Act only if they are held in a relevant filing system (Durant v Financial Services Authority [2003] EWCA Civ 1747. See 8.1.3 Case law ).

All personal data which are held in electronic format, including scanned documents which were formerly held in hard copy form, are subject to the Act.

For more information see the Law Society's practice note on Data protection in 8.1.1 Practice notes .

5.1.2 Data security

It is much easier to corrupt electronic data, whether by accident or design, than paper. Systems need to be in place to safeguard the authenticity, reliability, accessibility and security of all electronic material.

Email is both unreliable and an insecure medium. If necessary, encryption should be used to safeguard the confidentiality of information transmitted via email. Email should not be relied upon as a storage medium.

Information should be stored in a system, whether paper or electronic, which manages it according to its function and content, not its format.

For more information see the Law Society's practice note on Information security in 8.1.1 Practice notes .

5.1.3 Migrating data

It is a mistake to treat all data as though it were of equal value. Only business critical data or data of clear reference value should be migrated to new systems; the remainder should be destroyed according to an agreed retention and disposal policy prior to any migration occurring.

This is particularly important where personal data is concerned, since migration is a form of processing and should therefore not be undertaken if there is no longer any need to retain the data.

Migration of large quantities of data is additionally a costly process and can also result in loss or corruption of data elements. Before data is transferred to a new system, the firm should consider whether or not data is likely to be corrupted by the migration process.

5.2 Charges for storage

Your retainer should set out any charges for storage and for copying the file or producing a document from storage.

You may wish to remind your client that there is a cost to your business for storage and retrieval of documents from deep storage, particularly where the material is kept off site.

5.3 Storing files on microfilm

You may need your client's permission if you wish to put records of documents they own on microfilm, and you may wish to deal with such questions in your retainer letter as a matter of routine.

5.4 Losing a file

Loss of a file may amount to inadequate professional service or negligence where deeds are lost. You may need to contact your insurer to record the loss and you should consider contacting your client to discuss what remedial action can be taken, especially if original papers such as wills have been lost.

If a claim arises in relation to lost papers the courts will weigh up the available evidence to assess your part in the matter.

6 Limitation periods

The limitation period may vary depending on the type of work undertaken.

6.1 Will files

When considering whether a file should be destroyed you should note that in will cases successful claims can be brought well after the usual contractual period of six years from the end of the retainer or time the work was completed/applicable in many other matters. Files should therefore be retained until any risk of a claim has passed.

Section 14B of the Limitation Act 1980 provides that a negligence claim will be time-barred after 15 years from the date on which the act or omission constituting negligence occurred, even where the cause of action has not yet accrued. There is no definition of negligence for this purpose so it is unclear whether ‘negligence’ is limited to the tort of negligence or whether it also includes a breach of contractual duty to exercise reasonable care and skill. There is judicial authority (Societe Commerciale de Reassurance v ERAS (International) Ltd [1992] 2 All ER 82) that in section 14A of the Limitation Act 1980 ‘negligence’ is limited to the tort of negligence. Section 14B therefore may not be a complete protection against liability.

6.2 Personal representatives

For claims against personal representatives the limitation period is twelve years from the date on which the right to receive the property accrues (section 22(a) Limitation Act 1980) or from the date the right to receive the share accrued which may be from the end of the executors' year rather than the date of death. See 8.1.2 Legislation for details.

6.3 Discoverability ? fraud mistake and concealment

Under section 32 of the Limitation Act 1980 the limitation period does not start to run until the claimant discovers the mistake, fraud or concealment or could have discovered it with reasonable diligence.

6.4 Disability/undue influence

Note that the limitation period, whichever applies, may not start to run until a claimant, deemed to have been under a disability (for example a minor child, a person with capacity problems, or someone suffering undue influence) has become free of that disability. So, for example, where a cause of action is apparent, a minor child will have six years from the date of attaining 18 years to take action.

Remember that a standard six year limitation period may not protect you in will related cases where, for example, undue influence is alleged, and note that in Humphreys v Humphreys [2004] EWHC 2201 (CH) a lifetime gift case, there was a successful challenge 13 years after the transaction. See 8.1.3 Case law for details.

7. How does confidentiality and legal professional privilege apply?

7.1 Confidentiality

The personal representatives will also decide whether to disclose any information to beneficiaries.

An executor's powers derive from the will, whereas an administrator's powers derive from the grant of representation. Accordingly, if the client died intestate, the administrator's authority to waive confidentiality will date from the issue of the grant.

There is an exception in cases where the validity of the will is in dispute. In such a case, the solicitor who prepared the will should make available a statement of his or her evidence regarding the execution of the will, and the circumstances surrounding it, regardless of whether or not the solicitor is acting for those named as executors in the will.

The statement should be available to anyone who is a party to probate proceedings or whom the solicitor believes has a reasonable claim under the will.

For more information see the Law Society's Disputed wills practice note in 8.1.1 Practice notes .

7.2 Privilege

'Legal advice privilege' protects a client's communications to and from his lawyer made for the purpose of seeking legal advice or assistance.

Legal privilege belongs to the client, and only he/she can waive it. Privilege of the client passes to the personal representatives on death.

8. Further information

8.1 References

8.1.1 Practice notes

8.1.2 Legal and statutory regulations

8.1.3 Cases

8.2 Practice Advice

The Law Society provides support to solicitors on a wide range of areas of legal practice. The service is staffed by solicitors and can be contacted on 020 7320 5675 from 09.00 to 17.00 on weekdays.

Visit the Practice Advice Service website.

8.3 Further products and support

8.3.1 Law Society publications

8.3.2 Training and events

8.4 Acknowledgements

The Law Society acknowledges the contribution of the Wills and Equity Committee in drafting this guidance.

 
 
 

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