Client wants to leave a significant gift to the solicitor drafting the will (Code 6.1)
Edwin Thorne, aged 81, is a long-standing client of Clara Jennings, a solicitor. He asks her to prepare a new will leaving her his holiday cottage, worth about £250,000, to thank her for years of help. His estate is worth about £900,000. Clara is not related to him. She has no doubts about his capacity, but he says he does not want 'any more lawyers involved'.
How should Clara proceed?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: She should satisfy herself that Mr Thorne has first taken independent legal advice on the gift; if he will not, she will usually need to stop acting.
THE RULE TO REMEMBER
Before drafting a will containing a significant gift to themselves, a solicitor should be satisfied the client has taken independent legal advice; if the client refuses, they will usually need to stop acting.
Client wants to leave a significant gift to the solicitor drafting the will (Code 6.1)
Paragraph 6.1 of the Code prohibits a solicitor from acting where there is an own interest conflict or a significant risk of one. There are no exceptions, so client consent cannot cure it. The SRA's guidance on drafting and preparing wills says that where a client wishes to make a gift of significant value to the solicitor (or a family member or colleague), the solicitor should satisfy themselves that the client has first taken independent legal advice about the gift. 'Significant value' covers a gift that is significant in itself or significant relative to the estate. A cottage worth £250,000 is significant on both measures. Clara's personal financial interest conflicts with her duty to advise Mr Thorne impartially. She should explain this and ask him to take independent advice from another firm. The guidance says that if the client does not agree to take independent advice, the solicitor will usually need to cease acting.
Why A is wrong: Capacity and clear wishes do not remove the own interest conflict created by a significant gift to the drafting solicitor.
Why B is wrong: Supervision of execution by a colleague in the same firm is not independent legal advice and does not remove the conflict.
Why C is wrong: Valid execution goes to the will's formal validity, not to whether Clara may act despite her own interest in the gift.
Why E is wrong: A promise to disclaim later does not remove the conflict at the time she drafts the will and advises him.
A little more practice done.
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