B2.2: Drafting Wills

Drafting Wills

Rule B2.2 is a restatement of The Solicitors (Scotland) (Drafting Wills) Practice Rules 2010 ("the 2010 Rules") with one amendment (the addition of the word "knowingly" before the word "act" in rule B2.2.2, added for clarity and consistency with B2.2.3). The purpose of the rule is substantially the same as Paragraph 8 of the Schedule to the Standards of Conduct Practice Rules 2008 (that dealt with the drafting of a will containing a legacy in favour of a solicitor or a closely connected person) but avoiding the unnecessarily restrictive and inflexible effects of Paragraph 8.

Rule B2.2.3 is the substantive rule. That rule specifically prohibits solicitors from preparing testamentary writings that contain:-

(a) a bequest in favour of themselves or a connected person, subject to only certain exceptions (see below); or

(b) a direction to the executor that the solicitor's practice unit, or an entity, such as a Trustee company in which the practice unit has a financial interest, is to administer the testator's estate.

The aims in drafting rule B2.2 were to replace Paragraph 8 with provisions that are more appropriate and specific; to avoid concerns that arise out of general provisions; and to counterbalance any particular inequities that may arise by including a provision for waivers. In short, to regulate who prepares the testamentary writing rather than who benefits by it, and to avoid inoffensive situations being debarred with testators being sent away unnecessarily to another practice unit.

Rule B2.2 is not retrospective nor does it mean that a solicitor cannot prepare his own testamentary writing whatever the circumstances. 

Interpretation

'Business partner' does of course include members of an LLP.

'Connected person': includes 'employee or fellow employee.' The consultation process highlighted concerns in the profession about inappropriate pressures being applied to more junior solicitors by fellow employees to prepare testamentary writings in which the fellow employees are disproportionately benefitted. Additionally an employer solicitor should not accept instructions in relation to a testamentary bequest in favour of an employee who is to be disproportionately benefitted. 

That said, a solicitor's employees and their relatives are a potential client base and the purpose of the rule is not to prohibit a solicitor from acting for such clients, rather the prohibition will only operate in very particular circumstances. Further it is always open to the solicitor to seek a waiver.

Rule B2.2 applies to ALL solicitors in their own right, so whilst locums are included in the category of employees, agency solicitors, as self-employed sub-contractors, are still subject to the rule.

General Prohibition

Rule B2.2.2 is general in its terms and precludes anything reasonably perceived as allowing solicitors or those connected with them by family or professional relationship to exercise undue influence and obtain an unfair advantage. This covers situations not otherwise specifically prescribed in terms of the rule. The family and professional relationship defines the connection, and it is deliberately a wide term.

Exceptions to the Prohibition

There are 3 exceptions to the specific prohibition in rule B2.2.3 (a). Whilst what is prohibited is quite wide, the exceptions are also very wide, the intention being that rule B2.2 will permit everything that is reasonable and fair.

Exception (i)

The bequest is of token sums or items not exceeding £250 in total value

A token legacy (not a share of the residue) has long been recognised as reasonable. The average cost of instructing another solicitor to prepare a codicil (for such a bequest) is the benchmark for the upper limit for a token legacy.

The figure of £250 is the total value at the time the testamentary writing is executed.

Exception (ii)

The bequest is to the spouse, civil partner or cohabitant of the testator, subject to provisos

"Cohabitant" (as defined in the Family Law (Scotland) Act 2006) is included as an exception.

The two provisos are essentially exceptions to the exception.

The first is 'if the testator has issue at the date of execution of the testamentary writing, these issue are all apparently the issue of both the testator and the recipient of the bequest.'

It should be entirely open to a testator to leave everything to their partner, if that partner is also the parent of all the testator's children. It is presumed that it is solely up to parents to make their own choices as to provision for their own children, whose rights are in any event protected to an extent by their entitlement to claim legal rights on both parents' estates.

An example of what would be a breach of the rule is a solicitor whose spouse has a child by a previous relationship preparing a testamentary writing for their partner in which the solicitor benefits to the exclusion of that child.

If the solicitor were to survive their spouse, then under the will the solicitor would inherit. It would then be open to them to cut out the deceased spouse's child. It is not appropriate that the solicitor prepares that testamentary writing. The spouse should receive independent advice as to that possible consequence.

The second proviso is an alternative namely 'or if the testator has other issue, appropriate provision is also made for those other issue.'

On 'appropriate provision' it is impossible to be exhaustively prescriptive. However a simple and important example would be to leave the residue in liferent to the solicitor partner and in fee to the children including children of the testator's previous relationship (with no power to the liferenter to get a full advance of capital). Appropriate provision could also be a lump sum to the new partner and the residue to the children or vice versa, or some other kind of proportionate division between the new partner and the children. Much would depend on the size of the estate and the age of the children, which is why it is not appropriate to try to be exhaustive. Initially it must be for the solicitor to decide what is appropriate, but it should be borne in mind that in the event of a complaint this would be examined objectively and it may thus be preferable to send the testator elsewhere or seek a waiver from the Society.

The purpose of rule B2.2 is not to prevent testamentary writings being made; it is simply to prevent solicitors putting themselves in an invidious position.

While appropriate provision could rarely mean 'nil' a testator may explain that she has already by lifetime gift made very large provision for her children and thus wishes to leave what is left to her new partner, who may be within the definition of 'connected person' to the solicitor preparing the testamentary writing. That might well be appropriate but is exactly the type of case where the solicitor should either send the testator elsewhere or seek a waiver or at least guidance from the Society.

Exception (iii)

the bequest is to a person related to the testator and is not to any significant degree disproportionately large as compared to that of (1) any other person in the same degree of relationship to the testator or (2) any person, who under the law relating to intestacy is, or could be, a representative of, or represented by, any other person in the same degree of relationship to the testator

The representation point, which has been carefully thought through, is actually quite permissive. Once the exception was drafted a classic family tree was constructed and the provision thoroughly tested out with the solicitor in all the various permutations. To achieve the principle of complete flexibility regarding bequests to a family that includes a solicitor it was found necessary to include a provision for representation.

As an example there would be no difficulty in a solicitor making a testamentary writing for a parent leaving everything to the other parent whom failing all their children. However, if for what might be a very good reason, the parent wishes to benefit the solicitor son or daughter at the expense of one or more of their other children, the parent should be sent to a different practice unit to prepare the testamentary writing. Another example would be a solicitor's parent leaving a pecuniary legacy of a specific sum to each of their grandchildren. The solicitor may have more children than his/her siblings, but if the legacy is the same to each grandchild that would not breach the rule.

The aim in relation to this exception is to leave it quite widely permissive as long as the bequest is not disproportionately large in favour of the solicitor (or connected person). In relation to the wording 'significant degree' the intention is to allow a modest difference in value between or amongst specific items taken by different beneficiaries. For example if a mother has a number of items of jewellery and leaves some specific items to each of her two daughters, one of whom is married to a solicitor, that solicitor could prepare the testamentary writing even if the jewellery to be left to his wife is worth slightly more than the jewellery left to the other daughter, but not if it is worth twice as much. It is a means of allowing solicitors to exercise professional judgment and avoid unnecessary applications for waiver.

Prohibition of a Direction

Rule B2.2.3 (b) prohibits a solicitor from preparing a testamentary writing that contains a direction to the executors to instruct that solicitor's practice unit or Trustee company, and no other practice unit, in the administration of the estate. Such clauses are a clear example of a solicitor benefitting from the testamentary writing and have been criticised by the courts in recent years, notably by Sheriff John Baird in the JG Application (AW1259/09) 'reported' by Sheriff Baird himself in March 2009. It is only a Direction that is struck at. This rule does not prevent a testator from nominating the solicitor or their Trustee company as one of the executors, or even as the sole executor, with the usual professional remuneration. Nor would it be a breach of the rule if the solicitor executor in exercise of that power decides to act as solicitor in the administration of the testator's estate. What is prohibited is a direction to any other executors that they must instruct the solicitor who prepared the testamentary writing.

An in-house solicitor who is employed by a bank is not precluded from drafting a testamentary writing in terms of which it is provided that the bank will administer the Estate, so long as the solicitor is not appointed as an executor.

Waivers

The Council has power to grant a waiver which may be subject to conditions. Advice and Information on how to apply for a waiver of B2.2 can be found here.

It is appreciated that a testamentary writing may require to be completed within a timescale that does not allow for the grant of a waiver in which case the safest and recommended course is for the testator to be referred elsewhere.