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Preparing a will when your client is leaving a gift for you, your family or colleagues

Last updated: 13 June 2018

What is the issue?

  • Preparing a will or lifetime gift for a client can be a sensitive area. It is easy for those who receive less than they were expecting to allege improper influence, particularly if the client is giving property to you or someone connected with you. Your firm should therefore have safeguards in place to protect it from such allegations.

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and 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 of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. 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.

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, and
  • Chapter 11 on relations with third parties.

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.

The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

The principles which are particularly relevant to this issue include:

  • Principle 2 - You must act with integrity
    Personal integrity is central to your role as the client's trusted advisor and should characterise all your professional dealings with clients, the court, other lawyers and the public.
  • Principle 3 - You must not allow your independence to be compromised
    'Independence' means your own and your firm's independence, not just your ability to give independent advice to a client. You should avoid situations which might put your independence at risk.
  • Principle 6 - You must behave in a way that maintains the trust the public places in you and in the provision of legal services
    Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but the ability of the legal profession as a whole to serve society.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, this may be an indicative behaviour or non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

SRA - Solicitors Regulation Authority

IB - Indicative behaviour

The Law Society also provides a full glossary of other terms used throughout this practice note

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