Wills: is it OK to act?

 The Professional Practice team is regularly asked for guidance on any restrictions that apply to a solicitor preparing a will for themselves or for a professional colleague or one of their family. The relevant practice rule is rule B2.2.

Note that in what follows, (a) a reference to “spouse” shall be a reference to “spouse, civil partner or cohabitant”; and (b) “cohabitant” is as defined at s 25 of the Family Law (Scotland) Act 2006, that is, briefly, one of two persons living together as if they were husband and wife or as if they were civil partners.

Q1. I am a solicitor preparing a will for myself. Are there any restrictions on the provisions I can make in the will?

A. Providing you are preparing the will yourself, with no assistance or guidance from any other solicitor or practice unit and without your own firm preparing the will, there are no restrictions on the provisions that you can make in the will.

Q2. I am a solicitor in private practice. Can a fellowsolicitor in my practice prepare a will for me?

A. Yes – provided the will does not make a bequest of more than £250 in favour of any other solicitor or employee of the practice or in favour of any spouse, ascendant, descendant or sibling of any other solicitor or employee of the practice. However, the four exceptions to this limit set out below at answer 6 do apply.

Q3. I am a solicitor (in private practice or in-house or other). Can a solicitor in private practice (not in the same practice as me) prepare a will for me?

A. Yes – provided the will does not make a bequest of more than £250 in favour of any solicitor or employee of that practice or in favour of any spouse, ascendant, descendant or sibling of any solicitor or employee of that practice. However, the four exceptions to this limit set out below at answer 6 do apply.

Q4. I am an in-house solicitor. Can another in-house solicitor in my organisation or another organisation prepare a will for me on a personal basis?

A. This is not prohibited, but would not be recommended since the in-house solicitor would not have any insurance cover for preparing the will. However, if it did take place then the terms of rule B2.2 would still apply in respect of bequests of more than £250.

Q5. I am a solicitor preparing a will for someone other than myself (a client, another solicitor, my employer, an employee, my spouse, a family member, a friend, etc). What restrictions apply to me?

A. Rule B2.2.2 states as an overriding principle that: “You shall not knowingly act on instructions in relation to the preparation of testamentary writings which could reasonably be perceived to give unfair benefits to you or those connected with you by family or professional relationships.” This is self-explanatory and the emphasis is on the word “unfair”.

Without prejudice to B2.2.2, rule B2.2.3 states that neither you or any business partner, employer, employee, or fellow employee of yours, can prepare a “testamentary writing” for a client if it includes a bequest of more than £250 in favour of you or “a connected person”.

The definition of “connected person” is “your spouse, civil partner, cohabitant, ascendant, descendant or sibling; your business partner, employer, employee, or fellow employee; or the spouse, civil partner, cohabitant, ascendant, descendant or sibling of your business partner, employer, employee, or fellow employee”.

Q6. Can I ever prepare a will for a client if it contains a bequest of more than £250 in favour of me or “a connected person”?

A. Yes, it is permissible to prepare such a will in four situations:

• if the bequest is to the spouse of the client, and the client has no children;
• if the bequest is to the spouse, and if the children of the client (at the date of signing of the will) are all the children of the client and the spouse. In other words, if the spouse of the client is a parent of all of the client’s children;
• if the bequest is to the spouse, and if the client either (a) has children – but not children of whom the spouse is a parent, or (b) has children, some only of whom the spouse is a parent, this is permitted providing appropriate provision is also made for the children of whom the spouse is not a parent (“appropriate provision” is fully discussed at the guidance on rule B2.2 on the Society’s website, and will depend on the size of the estate, the age of the children, and other factors);
• where the bequest is to a person related (in blood) to the client and the bequest is not to any significant degree disproportionately large as compared to that of any other person in the same degree of relationship to the client. In other words, where the will makes a bequest of £2,000 to each of four children, that would be acceptable, but a division of say £5,000 to one child and £1,000 to each of the other three would not. Alternatively a bequest of 25% of the residual estate to each of four children would be acceptable, but 55% of the estate to one child and only 15% to each of the other three would not. (The reference to “any other person in the same degree of relationship” includes a representative (under the law of intestacy) of a predeceasing person, such as a child of a predeceasing child.)

Q7. I am a solicitor and am preparing a will for a client. Can I specify in the will that my firm (or one in which I have an interest) is to undertake the administration of the estate?

A. No, this is not permitted.

Examples of permitted wills:

a. A will by my spouse leaving more than £250 to me where (i) neither of us have any children, or (ii) we have children of whom we are both the parents, or (iii) we have children of whom we are both the parents and I also have children by a previous relationship, or (iv) I have children but my spouse does not, or (v) my spouse has children of whom I am not the parent, but “appropriate provision” is made in the will for those children. “Parent” includes adoptive parent, and “parents” includes adoptive parents or parents where one is a natural parent and one is an adoptive parent.

b. A will by my father leaving more than £250 to me, where (i) I have no siblings, or (ii) the bequest to me is not proportionately large compared to that in favour of each of my siblings.

c. A will by my child leaving more than £250 to me, where (i) the child’s other parent is receiving the same or a similar amount, or (ii) the child’s other parent has predeceased leaving no children of whom I am not the parent.