Consultation on Wills Practice Rules
Preparing a Will which includes a legacy in favour of the solicitor or a colleague - Proposed New Practice Rules
Introduction
When the Code of Conduct for Scottish Solicitors was converted into the Standards of Conduct Practice Rules in 2008, the provisions in Article 2 on drafting a Will containing a legacy in favour of a solicitor in the same firm or an immediate family member became paragraph 8 in the Schedule to the Standards of Conduct Rules. Following a number of subsequent observations on the wording of paragraph 8, the Society’s Professional Practice Committee set up a Working Party to produce new draft Rules.
These draft Rules are now being circulated to the profession for consultation. Responses are sought by 26 March 2010, and any responses received by that date will be reported to the Professional Practice Committee meeting on 1 April.
The new Rules
The purpose of the new Rules is substantially the same as paragraph 8 of the Standards Rules, but the Working Party feel that the new wording will achieve that purpose better than the wording of the existing Rule.
With certain stated exceptions, the Rules will prohibit solicitors from preparing any will containing a legacy in the solicitor’s own favour or in favour of a work colleague (of whatever status in the practice) or a family member of either the solicitor or the work colleague.
The exceptions are:
(1) A token legacy, defined for the first time as having a maximum value of £250;
(2) A bequest, which might be of the whole estate, in favour of the testator’s spouse, civil partner or cohabitant (as defined in the Family Law (Scotland) Act 2006) provided that if the testator has any issue when the will is made, those issue are all apparently of both the testator and the beneficiary.
As an example, mirror wills in which a husband and wife with two children of the marriage each leave their whole estate to the other whom failing the children could be drafted by one of them who happens to be a solicitor. However, if one of the children is of the non-solicitor’s previous marriage, the solicitor spouse could not draft such a will for the other spouse.
(3) A bequest to a relative of the testator provided it is not disproportionately large compared to bequests to others in the same degree of relationship to the testator.
As an 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 will 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.
The new Rules will also prohibit solicitors from preparing a will that contains a direction to the executors to instruct that solicitor’s firm or Trustee Company in the administration of the estate. Such clauses have been criticised by the courts in recent years.
Unlike the Standards of Conduct Rules, these new Rules contain power to grant a waiver in any particular circumstances or case. As an example of such circumstances, the Working Party identified the situation where the solicitor and testator might be in the relationship of Godparent and Godson/daughter. Each waiver request would be looked at on its own merits, and a general waiver will not be granted.
Next steps
If you would like to respond to this consultation (the draft rules are attached on the right) please send your comments to stellamccraw@lawscot.org.uk by 26 March 2010.
Following this consultation, the Rules – as revised in the light of the Committee’s consideration of any responses received – will be circulated with the papers for the Society’s Annual General Meeting on 27 May 2010. Members will therefore have two opportunities to respond to the draft Rules – first during the current consultation and thereafter when the AGM papers are circulated.
Updated 15.01.2010
