The Professional Practice team advises on whether and when a solicitor can act for one spouse who wishes to change an earlier mirror will

Identifying conflict

Q A solicitor phoned the Professional Practice team to advise that he had previously acted for longstanding clients in the preparation of their mirror wills. He had recently been approached by the wife, who reported strains on the marriage due to financial risks the husband was taking in relation to his business. The wife did not want to discuss separation or divorce but did want to instruct him to change her will.

A The solicitor was aware of previous guidance in relation to preparing wills for spouses, but was not sure if it related to his reported situation and was asking if he could accept the wife’s instruction to vary her own will.

The solicitor was correct in remembering that the Professional Practice Committee had addressed the issue of spouses instructing non-mirror wills: Journal, November 2002, 43. Helpfully this has been confirmed in para 7.18.01 of the recently published second edition of Law, Practice & Conduct for Solicitors by Alan Paterson and Bruce Ritchie: “It is not, per se, a conflict of interest where a solicitor takes instruction from spouses or partners to draft non-mirror wills for them, providing they do not purport to be instructing the solicitor to draw up mirror wills. A will is a private document, requiring authority from the individual for its contents to be disclosed to his or her spouse.”

Paterson and Ritchie go on to state that “A conflict of interest would, however, exist if spouses originally instructed mirror wills to be drafted, then unbeknown to the other, one spouse varied the instructions regarding his or her own will.”

That is, if during the course of instructing mirror wills, one spouse or partner approaches the solicitor on an individual basis to vary the instruction for his or her own will, this would give rise to a conflict of interest.

Paterson and Ritchie further advise: “If, on the other hand, the two spouses instruct wills individually at different times, there is no breach of the conflict rules involved in accepting such instructions”.

In short, this last passage answers the current question to the effect that there is no conflict of interest, per se, in accepting the wife’s instruction to change her own completed will from the original mirror provisions.

That said, there could be circumstances where the solicitor has continued to act for both testators after completion of their mirror wills that could give rise to a conflict of interest or a perceived conflict of interest in subsequently changing one or both of the mirror wills. A solicitor will always require to be alert to this possibility.

Acceptance of, and implement of such instructions, involves risks. As frequently rehearsed by members of the Professional Practice team, there are hazards in acting where there may be a perceived conflict of interest. First, management time is expended, even in successfully answering such a complaint. Secondly, any clients who perceive a conflict of interest are likely to be lost to the firm (whether or not they lodge a formal complaint), with the potential for attendant reputational damage.

Indeed, Paterson and Ritchie go on to observe that “solicitors may want to think about what they might have to say to the survivor after the first spouse dies if the survivor’s expectations will be significantly disappointed”. They suggest that “sometimes it may be best to decline if there is a complete disparity between the two instructions”.

Separate representation

Q The solicitor then wanted to discuss a proposal about essentially setting up information barriers at the time of accepting the original instruction for mirror wills. That is, as soon as spouses or partners present with a view to instructing what are likely to be mirror wills, they are assigned to separate solicitors in the firm and the two wills are prepared in isolation.

A Such a proposal, involving separate meetings, may sound contrived and may be viewed as such by the clients. It risks setting up a false and divisive position between the clients when what they really want is to have the opportunity of exploring together, with the assistance of their solicitor, their mutual and individual interests and completing wills that best reflect both their current circumstances and what they reasonably anticipate will be their future circumstances.

The firm’s view on the issue will depend on particular factors, perhaps including the complexity of the clients’ circumstances and the degree of the clients’ knowledge and sophistication. For example, it may become clear, either during the initial meeting or subsequently, that the couple have different views on material matters. Solicitors always need to be alert to a potential conflict becoming an actual conflict of interest during the course of a matter. That does not mean that the couple must be split between different solicitors from the outset. Indeed, if there is an actual conflict of interest the same firm should not continue to act for both parties and must refer at least one of them to another firm.

Terms of business

Q Finally, the solicitor wanted to discuss the merits of specifically providing in terms of business, issued at the time of accepting the original instructions for the preparation of mirror wills, that as each will is a private document, if either party wishes to change his or her own will in the future they can do so and the firm will accept such instructions on a confidential basis.

A The benefit of this suggestion is transparency. The clients are advised that notwithstanding their joint instruction the wills, even if in mirror terms, can be changed in the future. Although spouses or partners might waive their right to confidentiality at the time of preparing their original wills, they can be changed unilaterally in the future. Such information adds value to the service being provided in that it gives both testators an insight into the potential limitations of such wills.

Whether or not it is wise to include the specific provision that the firm will accept such future instructions is more difficult. Certainly it is transparent, but it may be viewed by some clients as overly pragmatic. This is primarily a client-relations issue that needs to be considered carefully on a client-specific basis. Furthermore, as mentioned above, a subsequent instruction may give rise to an actual conflict of interest and no provision in the original terms of business will get over this.

As a final observation, the situation in which many solicitors might feel more comfortable about accepting instructions to change one of the mirror wills in the future is where they act for one of the spouses or partners in relation to a subsequent divorce or separation, this is known to the other party, and during or on conclusion of such proceedings it is entirely expected that the client will change his/her will made during the relationship.

The Author
Stella McCraw is a solicitor in the Professional Practice team, tel: 0131 226 8896; email: stellamccraw@lawscot.org.uk  
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