wiqs – protocol: will drafting 01/132 i have taken wiqs - protocol: estate administration course i...

WIQS – Protocol: Will Drafting

01/132

I have taken WIQS - Protocol: Estate Administration course

I have not taken WIQS - Protocol: Estate

Administration course

If you have already taken the WIQS – Protocol: Estate Administration course, you may skip to the General Practice Policies section of this course. To do that simply click the green button below.

If you have not taken this course, please click the red button below to continue.

Welcome

Welcome to this online course which provides training on the parts of the Law Society Wills and Inheritance Protocol (the ‘Protocol’) relevant to will drafting work. The course includes the following sections: 1.An introduction to the Wills and Inheritance Quality Scheme (the ‘WIQS’)2.An overview of the Protocol3.A discussion of selected general obligations4.An overview of the general practice policies5.An explanation of selected will drafting practice policies6.Training on key specific obligations of the Protocol for will drafters.

The course presentation will take approximately one hour to complete.

02/132

Following completion of the course, you will need to complete an assessment comprising 15 multiple-choice questions.

About the author

Professor Lesley King is a solicitor, writer and trainer. She was formerly principal lecturer at the University of Law. Professor King writes and lectures extensively on wills, taxation and related matters. She is the wills and probate columnist for the Law Society’s Gazette and among her many publications are the Law Society Wills and Inheritance Protocol (Law Society, 2013), Probate Practitioner’s Handbook 6th edition (Law Society, 2011) and the Will Draftsman’s Handbook 9th edition (Law Society, 2012).

03/132

Training requirements of the WIQS

Within six months of a practice being notified of its acceptance as a new member of the WIQS, the practice’s nominated Senior Responsible Officer (the ‘SRO’) must: •identify relevant persons;•ensure that they are registered on the Law Society’s online CPD Centre; and •ensure that they complete the correct online training. There are two types of training in the first year of accreditation.

04/132

Types of training

Mandatory training Optional training

Click on each box to find out more.

05/132

Types of training

Mandatory training in the first year of accreditation

This online course and assessment questions comprise one part of the mandatory training to be taken by relevant persons in practices newly accredited by the WIQS.

Completion of this course and assessment fulfils the requirement of the WIQS for training relevant persons who undertake will drafting work.

Relevant persons who undertake estate administration work must complete and pass a separate mandatory training course and assessment called: WIQS – Protocol: Estate Administration.

Relevant persons who undertake will drafting and estate administration work must complete both training courses and assessments.

The other mandatory training course, WIQS – Role of the Senior Responsible Officer, need only be undertaken by the practice’s nominated SRO.



06/132

Types of training

Optional training in the first year of accreditation

A further optional course and assessment provides training on the new WIQS Core Practice Management Standards. This is also available on the Law Society’s online CPD Centre.

This course is most suitable for the SRO, the Head of Wills, Probate and Estate Administration, and the person appointed as overall risk manager for the practice.



07/132

Question 1

Is the following statement true or false?

TrueTrue FalseFalse

Completing this online course and assessment will fulfil the training requirements for all relevant persons in practices that have successfully applied for accreditation with the WIQS.

Click to select your answer

08/132

Question 1


TrueTrue

Completing this online course and assessment will fulfil the training requirements for all relevant persons in practices that have successfully applied for accreditation with the WIQS.


FalseFalse

The correct answer is False.

This course fulfils the training requirement for relevant persons who undertake will drafting work. There is a separate course for relevant persons who undertake estate administration work.

09/132

1. Introduction to the WIQS

10/132

About the WIQS

The WIQS is a new quality standard for practices authorised and regulated by the SRA that undertake will drafting, probate and estate administration work.

What does accreditation with the WIQS achieve?

It will provide a practice with a valuable marketing tool to further distinguish itself as a provider of high quality wills, probate and estate administration services.

It will also help a practice to strengthen its credibility with clients, the Solicitors Regulation Authority, and other stakeholders.

11/132

Establishing the credibility of members

The credibility of member practices will be established by focusing on:

•the integrity of the SRO and of relevant persons;•adherence to established practice management standards for solicitors’ practices contained in the WIQS Core Practice Management Standards (the ‘CPMS’); •adherence to the Protocol’s prudent and efficient wills, probate and estate administration procedures, representing the Law Society’s ‘preferred practice’ in these areas; and•a robust monitoring and enforcement procedure operated by the Law Society.

The aim is to provide a ‘trusted community’ of practitioners able to deliver high quality will drafting and estate administration services, which will deter fraud and increase competence, standards and levels of client service.

This should enhance the reputation of accredited practices, allowing them to retain market share and develop and grow their business.

The Law Society is currently planning for a consumer-facing marketing campaign to promote the WIQS in early 2014.

12/132

The key role of the Senior Responsible Officer

The SRO is accountable to the Law Society for ensuring the accuracy of the information supplied during the application process and for the ongoing compliance of his/her practice with the requirements of the WIQS.

The integrity of the SRO is therefore vital to the overall success of the WIQS and its members. A Practice Agreement setting out the obligations of the SRO must be signed by the SRO and the Law Society before a practice can be accredited. This Agreement contains an undertaking that the SRO will endeavour to ensure that the practice:

•at all times conducts itself in a manner that supports and promotes the integrity of the WIQS and its brand as a mark of quality;•complies with the WIQS Client Service Charter;•complies with the Protocol; and•complies with the CPMS.

Before we consider the Protocol in more detail, we will take a brief look at the WIQS Client Service Charter and the CPMS.

13/132

WIQS Client Service Charter

The WIQS Client Service Charter is a public-facing document. It is designed to clearly communicate to clients the key standards of client service offered by members of the WIQS. The WIQS Client Service Charter can be viewed online at the Law Society’s website.

It is a general obligation of the Protocol to, at the outset of a matter, give the client a copy of the WIQS Client Service Charter or details of where it can be viewed online (general obligation O.2).

It is important that you read the Charter and provide a service that meets these standards.

14/132

http://www.lawsociety.org.uk/wiqs

Core Practice Management Standards

The CPMS is designed to ensure quality by setting out standard policies and procedures to be used for the delivery of legal services.

These standards are selected from the long-established and wider ranging practice management standards of the Law Society’s Lexcel scheme. If your practice is accredited with Lexcel, it will already meet all the requirements of the CPMS.

The CPMS include standards in the following five areas: 1.Risk management.2.Financial management.3.Information management.4.Client care.5.File and case management. The standards can be obtained online at the Law Society’s website.

15/132

http://www.lawsociety.org.uk/accreditation/specialist-schemes/wills-inheritance-quality/apply/

Complying with the CPMS

To comply with the CPMS/Lexcel, your practice will have appointed a single risk manager for the entire practice and a named supervisor for each area of legal practice undertaken (e.g. private client).

The person(s) appointed to these positions will ensure that you are aware of your role in achieving compliance with the CPMS/Lexcel, particularly those standards that deal with:

•accepting and declining instructions;•provision of client care and costs information;•the progress of matters;•regular checks of files for inactivity;•prevention of financial crime; and•reporting to the client at the end of a matter.

16/132

CPMS – Operational risk

Operational risk is the primary concern of the CPMS. Fee earners will play a vital role in minimising operational risks to their practice under the CPMS and Lexcel. The responsibilities required by this role are set out in CPMS 1.14 and Lexcel 6.12. They arise at three stages.

Before the matter is undertaken

During the retainerAt the end of the

matter

17/132




Before the matter is undertakenA fee earner must: •consider if a new client and/or matter should be accepted by the practice, in accordance with CPMS 5.1/Lexcel 8.1; and

•assess the risk profile of all new instructions and notify the risk manager in accordance with procedures under CPMS 1.5/Lexcel 6.3 of any unusual or high risk considerations in order that appropriate action may be taken.



matter

18/132




During the retainer A fee earner must: •consider any change to the risk profile of the matter and report and advise on such circumstances without delay, informing the risk manager if appropriate; and •inform the client in all cases where an adverse costs order is made against the practice in relation to the matter in question.


matterBefore the matter is

undertaken

19/132




At the end of the matter A fee earner must: •undertake a concluding risk assessment by considering if the client’s objectives have been achieved; and•notify the risk manager of all such circumstances in accordance with documented procedures.

At the end of the matter


During the retainer

20/132


Question 2


FalseFalse

The Protocol requires that a fee earner must give the client a copy of the Core Practice Management Standards at the outset of every matter.


21/132

TrueTrue

Question 2


TrueTrue

The Protocol requires that a fee earner must give the client a copy of the Core Practice Management Standards at the outset of every matter.


FalseFalse


The Protocol requires that, at the outset, clients are either given a copy of the WIQS Client Service Charter or directed to where the Charter can be viewed online. The Core Practice Management Standards are used by a practice to ensure that a consistent quality of service by putting in place standard policies and procedures.

22/132

2. Overview of the Protocol

23/132

Introduction

This section of the course provides a brief explanation of the background to the development of the Protocol and an overview of its content. The idea for the Protocol was conceived to provide the WIQS with a foundation of good practice standards. The WIQS itself was developed against the backdrop of the movement to regulate the provision of will writing activities. You will see in the obligations of the Protocol, therefore, an attempt to address certain issues and concerns raised in the consultations and reports published during the investigation of the regulation of will writing.

24/132

Toward regulation of will writing

The Law Society has carried out a long-running and vigorous campaign gathering and publishing evidence in favour of the statutory regulation of the will writing.

In The Future of Legal Services: Putting Consumers First (Cm 6679, October 2005, p.79) the Labour government called for voluntary regulation of will writing, such as codes of conduct. The first voluntary code for will writers did not appear until five years later, in June 2010. Although the Joint Committee on the Draft Legal Services Bill recommended that will writing be included in the Legal Services Act 2007 as a regulated activity, the government rejected the proposal and stated in its response that the Legal Services Board should consider the issue.

25/132

Statutory investigation announced

In September 2010, the Legal Services Board requested that the Legal Services Consumer Panel gather evidence about the consumer experience when purchasing will writing services.

The Law Society responded by commissioning its own independent consumer research on a sample of 1000 adults and shared its findings with the Consumer Panel. This research found that consumers were unable to differentiate between regulated and non regulated providers.

Based on the report of the Legal Services Consumer Panel, the Legal Services Board announced, in July 2011, a statutory investigation into the regulation of will writing, probate and estate administration activities.

26/132

Development of the WIQS

The Law Society stepped up its campaign in 2011 by: •setting out its objectives in a paper;•requesting evidence on will writing practices from its members;•establishing an online campaign page to co-ordinate information; and •calling for the Legal Services Board to add the preparation of lasting powers of attorney to the ambit of the Legal Services Act 2007.

Towards the end of 2011, the Law Society also began a parallel project to plan an accreditation scheme, based on the model of the Conveyancing Quality Scheme, for practices undertaking private client work. The project acted upon the findings of the Law Society’s consumer research to:

•deliver a means for solicitors to differentiate themselves in a crowded market;•help consumers make informed decisions when choosing legal services, and•ensure solicitors remained the first choice for will writing, probate and estate administration work.

27/132

Development of the Protocol

In the summer of 2012, the Law Society canvassed the views of the Law Society’s Private Client Section on the possibility of launching such a scheme for private client practices. Encouraged by the response, the Law Society began development of a Protocol on the subject of will drafting, probate and estate administration to support the scheme in September 2012.

Drafts of the Protocol were reviewed by the Law Society’s Policy team, a Steering Group of volunteer practitioners, and representatives of stakeholders, such as local law societies.

28/132

The decision not to regulate

On 13 February 2013 the Legal Services Board recommended to theLord Chancellor that will-writing activities should be made subject to regulation to reduce ‘the significant risks consumers currently face when using these critical services’.

The Legal Services Board had considered but did not recommend regulation of estate administration, stating that the evidence suggested that statutory regulation would not be effective in preventing what is essentially criminal behaviour.

On 14 May 2013, in a Ministry of Justice statement, Chris Grayling said that the Legal Services Board report did not adequately demonstrate that bringing will-writing activities within the definition of reserved legal activities was the ‘best solution’. He considered that to try to avoid the ‘costs and burdens of reservation’ efforts should be made to see if alternative measures could be made more effective.

29/132

Ministry of Justice recommendations

Chris Grayling suggested:

•more targeted guidance for the legal profession and the strengthening of existing regulation of authorised persons; •combined with voluntary regulation schemes and codes of practice for non-authorised providers.

He also called for better consumer education and greater use of existing consumer protections.

30/132

Publication of the Protocol

The Protocol answers the call for more targeted guidance for the legal profession and the promotion of the WIQS by the Law Society and its members will contribute to the education of consumers.

The first version of the Protocol, v.1.0, was published online on 5 July 2013, on the day the launch of the WIQS was announced at the Private Client Section’s annual conference.

A printed version, which also presents the good practice guidance and law referred to in the obligations of the Protocol, was published on 30 September 2013.

Despite the announcement by Chris Grayling, the Law Society continues to campaign for the regulation of will writing, estate administration and the preparation of lasting powers of attorney. To find out more, visit the Law Society’s campaign update page on the regulation for will writing.

31/132

http://www.lawsociety.org.uk/representation/campaigns/will-writers/

The structure of the Protocol

The Protocol is divided into the following sections:

•general obligations;•will drafting (Part A);•general estate administration (Part B);•special aspects of administration (Part C);•advising on variation of dispositions (Part D);•claims made under the Inheritance (Provision for Family and Dependants) Act 1975 (Part E);•general practice policies (Part F);•will drafting practice policies (Part G); and•estate administration practice policies (Part H).

This course provides training on the general obligations, Parts A, F and G.

32/132

The aims of the Protocol

The Protocol is a statement of the Law Society’s ‘preferred practice’ in will drafting, probate and estate administration matters. Its primary purpose is to facilitate the consistent delivery of a high quality service to clients.

It therefore seeks to establish high standards of client care, address common causes of complaints and claims, and draw together points of good practice in order to set these out in the procedure steps of a Protocol.

It is not, however, intended to provide an exhaustive checklist of every step to be taken when drafting a will, nor does it provide for every possible circumstance.

33/132

The use of the Protocol

There will be situations in which it will not be possible to adhere to all elements of the Protocol because, for example, of a need for urgent action.

If you need to act in a way that differs in a material respect from the Protocol, you should consult your supervisor and make a record in the file as to why it is in the best interests of the client to do so.

The WIQS requires its members to follow the new Protocol, insofar as it is appropriate to the matter at hand and in the best interests of the client, from the date the practice receives notification that its application has been successful.

34/132

Question 3


TrueTrue FalseFalse

The development of Protocol was the Law Society’s response to the Ministry of Justice statement by Chris Grayling, in May 2013, that will writing will not be regulated activity.


35/132

Question 3


TrueTrue


FalseFalse


The Protocol was commissioned in September 2012 to provide a means to demonstrate the high standards of practice and client service that solicitors authorised and regulated by the SRA adhere to and which consumers, who have previously been unable to distinguish between regulated and unregulated providers, can recognise by the display of the WIQS logo.

The development of Protocol was the Law Society’s response to the Ministry of Justice statement by Chris Grayling, in May 2013, that will writing will not be regulated activity.

36/132

3. General Obligations

37/132

General obligations

The new Protocol requires those who adopt it to adhere to 32 general obligations which clearly set out the standards of client service that clients and other stakeholders can expect from members of the WIQS. These general obligations are separated from the sections of the Protocol on will drafting,probate and estate administration work as they apply to all these areas of work.

Practices regulated by the SRA will already comply with many of these obligations as some of them repeat the requirements of the SRA Code of Conduct 2011.

The general obligations are organised into six areas:•Client communication;•Costs;•Vulnerable clients;•Sales practices;•Quality; and •Practice policies.

We will now look at each area of the general obligations in turn.

38/132

Client communication

There are thirteen general obligations under the heading of client communication. We will consider five of them in this course.

Responsibility for the matter

Changes to person with responsibility

Time frame and communication

Response to client communications

Delay

39/132




Responsibility for the matterAt outset, give the client in writing the name and status of: •the person dealing with the matter; and•the person responsible for overall supervision (general obligation OB.4). This is also, broadly, a requirement of the core practice management standards and the indicative behaviours of the SRA Code of Conduct 2011.





Delay

40/132




Changes to the person with responsibilityYou must inform clients in writing if there is to be a change to the person responsible for conduct of the matter or to the person with overall supervision of the matter (general obligation OB.10). Where a change is necessary, give the new person’s name and status in writing. It is also good practice to explain the reason for the change. Such changes should be avoided unless they are necessary due to absence or competence to carry out the work, as it is important for the client’s perception of your service for the same person to be handling their matter from beginning to end.





Delay

41/132




Time frame and communicationAt outset, agree an appropriate level of service with clients including the means and frequency of communication (general obligation OB.5). This is also indicative behaviour IB(1.1) of the SRA Code of Conduct 2011.





Delay

42/132




Response to client communicationsUnless otherwise agreed with the client, you will need to acknowledge all communications from clients within 48 hours of receipt and, if substantive points cannot be dealt with within that period, provide a time frame for doing so (general obligation OB.6). This is a new requirement of ‘preferred practice’ intended to improve service levels and avoid a major cause of dissatisfaction among clients. Your practice may already have its own standard levels of service with regard to dealing with communication with clients, or wish to improve on the standard set by the Protocol. In which case, your practice’s established level of service can be used in preference to the one set out in this general obligation, provided that it is agreed with the client.





Delay

43/132




DelayInform clients as soon as possible of any delays or changes to the time frame originally given and give a full explanation as to the nature of and reasons for any delay. This includes any delay caused by issues at the practice, e.g. illness of staff members (general obligation OB.11). This obligation derives from previous conduct rules and will help your practice to avoid a major cause of dissatisfaction among clients. It will also help a practice to act in accordance with SRA Principle 5 to ‘provide a proper standard of service to your clients’.





Delay

44/132


Costs

Meeting the Protocol’s general obligations on costs information will help your practice to demonstrate compliance with the outcomes and indicative behaviours in Chapter 1 of SRA Code of Conduct 2011 and the requirements of the core practice management standards/Lexcel v.5. Your attention is drawn to the following general obligations in particular: •at the outset, give the client a clear explanation of how the practice charges for the service and whether there is an initial consultation fee (general obligation OB.14);•inform the client of any changes in the method of charging, together with an explanation of why the charges have been changed (general obligation OB.17); and•if it becomes evident that costs are likely to exceed the initial estimate, inform the client and explain why the costs have increased (general obligation OB.18). An explanation of whether there is an initial consultation fee will need to be given before such a consultation takes place. The client could be informed during the initial contact and through prominent notice in printed and electronic media, such as a practice’s website and information leaflets.

45/132

Vulnerable clients

The Protocol recognises that, in private client work, practitioners are more likely to take instructions from vulnerable clients and should therefore be alert and sensitive to the issues that may arise.

Identifying vulnerable

clients

Issues of concern

SRA Code of Conduct 2011


The SRA’s views

46/132

Vulnerable clients

Identify vulnerable clients

A client who wishes to make a will may be particularly vulnerable. You will need to consider whether clients may be vulnerable due to, for example:

•disability;•learning difficulties;•mental health;•infirmity and illness;•age; and•bereavement and emotional distress (general obligation OB.19). As we shall see later in the course, a practice will also have a policy designed to help it meet the particular needs of clients with a disability.



47/132


clients

Issues of concern


The SRA’s views

Vulnerable clients

Issues of concern

You should take particular care:

•to remain alert for the potential for financial abuse of vulnerable clients and understand your role in preventing it and taking action to protect clients (general obligation OB.20);•to ensure that vulnerable clients fully understand the services they require and are able to make informed decisions (general obligation OB.21); and•not to put pressure on vulnerable clients when selling or promoting services (general obligation OB.22). To understand your role in preventing financial abuse, it is recommended that, if you’ve not done so already, you read the guidance in the Law Society’s Financial Abuse Practice Note after taking this course.



48/132


clients

Issues of concern


The SRA’s views

http://www.lawsociety.org.uk/advice/practice-notes/financial-abuse/

Vulnerable clients

The SRA’s views

In a press release dated 20 December 2011, the SRA urged practices to consider whether their approach to client care took account of the particular needs of vulnerable clients: ‘Firms need to think carefully about how to deliver an appropriate approach to client care for those who may be vulnerable for any physical, social, or psychological reasons…Under the old regulatory framework, compliance might have been achieved by providing that client with a letter detailing all the ins and outs of the legal process, and what the firm would be providing. For many clients under the new regime, this may fit their needs; for others it may not. It is clear that the same approach for each client does not always work, particularly when they are vulnerable.’



49/132


clients

Issues of concern


The SRA’s views

Vulnerable clients


The SRA Code of Conduct 2011 specifically refers to vulnerable clients in chapter 1 and chapter 3: ‘having a written complaints procedure which…is responsive to the needs of individual clients, especially those who are vulnerable’ (indicative behaviour IB(1.22)). ‘[Your practice will need to be able to demonstrate that its] systems and controls for identifying client conflicts are appropriate to the size and complexity of the firm and the nature of the work undertaken, and enable you to assess all relevant circumstances, including whether …any client is vulnerable’ (outcome O(3.3)).



50/132


clients

Issues of concern


The SRA’s views

Sales practices

During its campaign calling for the regulation of will writing, Society gathered evidence of the Law Society gathered evidence of sales practices amongwill writers that gave numerous causes for concern. The Protocol therefore draws attention in the general obligations to the high standards of solicitors in this regard.

51/132


Other providers

Statutory requirements

Voluntary codes

Pressure to buy services

Misleading claims

Sales practices


Misleading claimsYou must ensure that your practice’s publicity material does not make misleading claims as to the advantages that can be gained from making a will (general obligation OB.24(a)).

52/132


Misleading claims Other providers


Voluntary codes


Sales practices


Pressure to buy servicesYou must ensure that your practice’s publicity does not advertise basic wills at a very low price with the intention that clients will later be pressured to buy more complex wills and future services which are not in their best interests (general obligation OB.24(b)).

Misleading claims Other providers


Voluntary codes

53/132



Sales practices


Other providersYou must ensure that publicity does not make unjustifiable or misleading statements about the skill and/or charging structures of other types of provider of legal services (general obligation OB.24(c)).

Misleading claimsPressure to buy

servicesOther providers


Voluntary codes

54/132


Sales practices


Statutory requirementsYou must ensure that your publicity complies with statutory requirements (general obligation OB.27). ‘Statutory requirements’ include, among others: •regulations made under the Consumer Credit Act 1974 concerning the content of advertisements;•Consumer Protection Act 1987; and•Control of Misleading Advertisements (Amendment) Regulations 2000 in relation to comparative advertising.




Voluntary codes

55/132


Sales practices


Voluntary codesYou must ensure that in carrying out publicity work you have regard to voluntary codes and the Law Society’s Publicising Solicitors’ Charges Practice Note (general obligation OB.27). ‘Voluntary codes’ include, for example, the British Code of Advertising, Sales Promotion and Direct Marketing.




Voluntary codes


56/132

http://www.asa.org.uk/Media-Centre/2008/~/media/Files/CAP/Consultations/CPRtrackchangesandreferencestoCPRS.ashx

Benefits to the practice

Meeting these general obligations on sales practices will help your practice to act in accordance with SRA Principles 2 (to act with integrity) and 6 (to behave in a way that maintains the trust the public places in you and in the provision of legal services). It will also help towards compliance with Chapter 8 of the SRA Code of Conduct 2011 (Publicity) and the WIQS Practice Agreement to ensure your practice conducts itself in a manner that supports and promotes the integrity of the WIQS. High standards of publicity and sales practice will play an important and visible part role in distinguishing your practice from unregulated providers.

57/132

Quality

Quality in terms of providing will drafting, probate and estate administration services is addressed throughout the Protocol and, in terms of practice management, by the CPMS/Lexcel. The general obligations of the Protocol specifically deal with certain key aspects of ensuring a quality service is provided to clients.

58/132

Supervision system Allocation of work

Expertise of staff Client feedback


Accepting instructions

Quality


Accepting instructionsYou must only accept instructions if the practice has suitable levels of expertise to deliver the service and ensure the quality of service (general obligation OB.28). Your practice’s implementation of the CPMS/Lexcel will help to identify and record the areas of work which it will and won’t undertake and ensure you only accept instructions according to a standard procedure.





59/132

Quality


Supervision systemYour practice must have a system of supervision in place which is robust enough to identify issues of quality (general obligation OB.29(b)).





60/132

Quality


Allocation of workYour practice must have a system for ensuring that work is allocated to those who have the expertise to deal with it appropriately (general obligation OB.29(a)).





61/132

Quality


Expertise of staffYour practice must have a clear process requiring anyone who finds work allocated to them is beyond their expertise to alert the person supervising them (general obligation OB.29(c)). As this point is addressed at many points throughout the Protocol, where further advice outside the standard retainer may be required by the client, your practice will have a policy setting out this process (Practice Policy GP.2).





62/132

Quality


Client feedbackYour practice must encourage client feedback by appropriate means, e.g. a short survey/feedback form and have in place a system for reviewing feedback and identifying necessary modifications of procedures (general obligations OB.30 and OB.31).





63/132

Practice policies

The final general obligation is intended to remind practices that they must have the policies set out in Parts F, G, and H of the Protocol (general obligation OB.32). These polices are intended to mitigate certain key risks to the client and to the practice which have been identified as commonly arising from the provision of will drafting and estate administration services. We will consider the general practice policies in Part F and the will drafting policies in Part G in more detail in the next section of this course.

The policies in Parts F, G and H of the Protocol are: general practice policies (Part F); will drafting practice policies (Part G); and estate administration practice policies (Part H).

64/132

Question 4


TrueTrue FalseFalse


All substantive points raised in client communications must be dealt with within 48 hours.

65/132

Question 4


TrueTrue


FalseFalse


Unless otherwise agreed with the client, you must acknowledge all communications from clients within 48 hours of receipt and, if substantive points cannot be dealt with within that period, provide a time frame for doing so (general obligation OB.6).

All substantive points raised in client communications must be dealt with within 48 hours.

66/132

4. General practice policies

67/132

Practice policies

Certain issues commonly give rise to risks, mistakes and inconsistency in will drafting, probate and estate administration work. The majority of these issues are dealt with in the main part of the Protocol, but there are some issues on which practices will need freedom to approach differently, according to their appetite for risk or their existing policies and procedures.

There are also other issues on which practices will benefit from having a written policy to ensure it adopts a consistent approach. The Protocol therefore requires practices to have written policies on certain issues, but only prescribes the broad points for inclusion in these policies; not the detailed content.

68/132

Implementation of general practice policies

Your practice’s Head of Wills, Probate and Estate Administration, risk manager and, if he/she is not appointed to those positions, the SRO, are likely to be responsible for developing these policies.

The detail of such policies will differ from practice to practice but the matters that need to be addressed will be the same.

Staff who draft wills must comply with their practice’s policies required by Parts F and G.

Your practice’s policies to comply with the Protocol may be incorporated within other policies designed to comply with the CPMS or Lexcel.

69/132

Practice policies required by Part F

There are two ‘general practice policies’. General practice policies apply to the areas of will drafting, probate and estate administration.

GP.1 Clients with a disability

GP.2 Advice required which the practice cannot provide


70/132



Clients with a disabilityThis policy requires a practice to set out how it makes enquiries to discover whether the client has any communication difficulties before the client attends the office for an interview. This policy will therefore also need to be communicated to staff who deal with initial enquiries from potential clients. It must include a list of what the practice regards as ‘reasonable adjustments’ to comply with the Equality Act 2010. Practices are likely to already have an equality and diversity policy and procedures to ensure compliance with this Act. This policy will also include a list of trained signers to interpret for clients who use sign language but who do not wish to use family or friends.




71/132



Advice required which the practice cannot provideThis policy addresses the issue where, during a matter, it becomes apparent that the client requires advice outside of your practice’s standard retainer and in an area of advice which your practice has chosen not to provide. This might be where, for example, the client has business or agricultural assets and requires further advice relating to inheritance tax. Under this policy, when separate advice is required from outside your practice, you must consider whether it’s in the client’s best interests for you to continue acting in the rest of the matter. The situation where a client declines to take separate advice is also covered. This policy may be dealt with by your practice’s procedures for accepting and declining work required by the CPMS/Lexcel.




72/132

5. Will drafting practice policies

73/132

Practice policies required by Part G

There are eight practice policies in Part G which address areas of risk to the client and to the practice connected to will drafting work: •WP.1 taking instructions;•WP.2 retainer letters/agreements; •WP.3 client information on risk; •WP.4 urgent instructions;•WP.5 consistency;•WP.6 attendance notes;•WP.7 gifts to those drafting wills or those connected with them; and•WP.8 storage of wills and retention of files. We will now look in more detail at four of these policies.

74/132

Taking instructions

It is likely that this policy will be considered by your Head of Wills, Probate and Estate Administration together with the risk manager and your practice’s nominated Money Laundering Reporting Officer.

It may form a single separate policy or the different requirements may be dealt with in your practice’s other policies and procedures, for example, your procedures for prevention of financial crime and accepting instructions for higher risk matters. The policy requires a practice to set out its general approach to matters such as: •whether anti-money laundering client due diligence checks will be made on all clients giving instructions to make a will (this is not required for compliance with the Money Laundering Regulations 2007, but will avoid potential delay later in a matter should such a check be required and will satisfy the need to check the identity of the testator/testatrix); •steps that need to be taken to check the identity of the testator/testatrix;•safeguards for instructions accepted in writing and/or online;•checks required if the will drafter is not the same person who took instructions from the client; and•checks required to establish whether the client completed a pre-interview questionnaire personally.

75/132

Retainer letter/agreements

Will drafting practice policy WP.2 requires a written policy onthe use of standard letters/agreements which set out the termsof the retainer and make clear to the client: •matters included as part of the standard retainer;•matters falling outside the standard retainer which can be offered for a separate charge;•matters normally included as part of a standard retainer which are expressly excluded and on which separate advice would, therefore, have to be obtained; and•how charges are made for separate elements of the retainer. The person responsible for your practice’s client care policy and Head of Wills, Probate and Estate Administration will consider your standard client care letter template and terms of business to ensure that they refer to these requirements. The purpose of this policy is to: •give clients a better understanding of all the services and advice they will receive when they instruct a solicitor’s practice;•encourage the unbundling of services to allow practices to compete with other providers; and•make costs information clearer and therefore reduce complaints.

76/132

Client information on risk

This policy aims to help practices to demonstrate they havemet outcome O(1.12) of the SRA Code of Conduct 2011: ‘clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them’. It also deals with some specific concerns raised during the Legal Services Board’s investigation into the regulation of will writing. The key risks which must be communicated to the client, whether or not templates are used to convey this information, are that: •a will may cease to carry out the client’s wishes if the client’s circumstances change in the future;•a will may be lost or damaged, or confidential information may be passed on to others, if the client’s will is stored by another person and sufficient safeguards are not in place;•if the client appoints a sole executor, that person has wide powers to access and deal with the client’s estate; and•paying the cost of future estate administration services at the time of making a will may not be in the client’s best interests.

77/132

Urgent instructions

There are circumstances where a new will or codicil to an existing will may need to be prepared urgently for a client. This will restrict a practice’s ability to meet the all the obligations of the Protocol.

This is recognised by the Protocol, which requires practices to set out their general approach to dealing with the additional risks presented by urgent instructions. Some practices may decide that they will not accept instructions for ‘death bed’ wills and record this in their policy and in the list of work they will not undertake required by the CPMS/Lexcel. A practice that decides to take on urgent instructions for will drafting will need to set out in the policy: •the steps to assess capacity and consider undue influence;•the steps to establish, where the client later lacks capacity at execution, that the client remembers giving instructions and understands his/her will has been prepared based on those instructions; •the modifications of the standard retainer required for urgent instructions;•the use of template documents/checklists for use when taking urgent instructions; and•the circumstances where a codicil to an existing will may be prepared in preference to a new will.

78/132

Question 5


TrueTrue FalseFalse


Although the Protocol requires practices to have policies in place to deal with areas of common risk, it does not prescribe the precise terms which have to be included but allows practices to develop policies which suit their particular circumstances.

79/132

Question 5



The correct answer is True.

The Protocol requires practices to have policies to minimise certain risks. However, the detail of such policies will differ from practice to practice.

Although the Protocol requires practices to have policies in place to deal with areas of common risk, it does not prescribe the precise terms which have to be included but allows practices to develop policies which suit their particular circumstances.

FalseFalseTrueTrue

80/132

6. Will drafting obligations

81/132

Will drafting

The Protocol contains requirements relating to the whole process of preparing a will, from initial instructions to overseeing the execution and safe storage of the will. These requirements have been chosen to facilitate the delivery of a high quality service to clients.

As the Protocol draws upon existing points of good practice which have developed over many years, practices applying for accreditation are likely to already meet many of the obligations. This training looks at the following elements of the Protocol which introduce requirements that may be less familiar to solicitors and those which deal with particularly problematic areas: •terms of the retainer;•arrangements for taking instructions;•attendance notes;•time limits for preparation of a will;•ascertaining testamentary capacity;•recording knowledge and approval;•arrangements for execution; and•storage and file closure.

82/132

Terms of the retainer

Will drafting practice policy WP.2 requires a practice to have a written policy on the use of standard letters/agreements which sets out its general approach to the terms of the will drafting retainer.

Obligations 3-8 of the Protocol contain details of the basic advice within the standard retainer that may be needed according to the client’s circumstances and requires consideration of where more detailed advice and work is needed outside the standard retainer.

83/132

Terms of the retainer – obligations 3-8

Establishing what advice is required

Advice outside of the standard

retainer


Advice required by obligations 3-8

84/132


Advice required by obligations 3-8Obligations 3–8 require you to provide some advice, as part of the standard will drafting retainer, on the following matters where relevant to the client: •assets passing independently of the will;•third party rights;•the Inheritance (Provision for Family and Dependants) Act 1975;•inheritance tax;•foreign property; and•business and agricultural assets. The retainer can provide that detailed advice on such matters is outside the standard retainer and will be charged for separately.


85/132



retainer



Establishing what advice is requiredEstablish whether clients need advice on the matters set out in Obligations 3-8. For example: •Does the client own assets passing independently of the will?•Is inheritance tax an issue? •Does the client own foreign property? If so, explain the current position, e.g. how such assets will pass on death, approximately how much inheritance tax will be payable and the problems that may arise in relation to foreign property.

If appropriate, explain that it may be possible to take steps to change the current position.

Your practice’s policy may exclude the provision of detailed advice from the standard retainer and provide for a separate charge. If so, make this clear to the client.


86/132



retainer



Advice outside the standard retainer •Establish whether the client wishes to receive services or advice outside the terms of the standard retainer, e.g. the preparation of a notice of severance of a joint tenancy or detailed advice on inheritance tax planning or foreign assets.•Consider whether you, or other members of your practice, have the expertise to provide such advice.

If your practice does not have the necessary expertise•Suggest that the client takes separate advice and, if the practice has the relevant knowledge, assist the client to identify a suitable adviser.•Consider whether it is in the client’s best interests to cease acting in relation to the preparation of the will.

If your practice does have the necessary expertise•Make clear that there is a separate charge and the basis on which the charge will be calculated.•If client due diligence is not routinely carried out on will drafting clients, consider whether it will now be required.


87/132



retainer


Question 6


TrueTrue FalseFalse


The Protocol requires a practice to have a written policy on the use of standard letters/agreements which makes clear: •what is included as part of the standard retainer; •advice/work which falls outside the standard retainer; and•how charges are made for separate elements of the retainer.

88/132

Question 6




The correct answer is True. See the Will Drafting Practice Policy WP.2.

FalseFalseTrueTrue

The Protocol requires a practice to have a written policy on the use of standard letters/agreements which makes clear: •what is included as part of the standard retainer; •advice/work which falls outside the standard retainer; and•how charges are made for separate elements of the retainer.

89/132

Arrangements for taking instructions

Section 1 of the Protocol deals with your practice’s arrangements for taking instructions to draft wills.

The arrangements you need to make to satisfy the Protocol concern: •clients with a disability;•third parties present at the interview with the client;•previous wills made by the client;•joint instructions; and•contracts made ‘off premises’.

We will now consider the first three of these areas in more detail.

90/132

Arrangements for clients with a disability

Obligations 1.1 and 1.4 of the Protocol, relating to clients with a disability, require you to: •establish whether a client has any disability which will affect the interview or future correspondence, for example visual, communication or mobility problems;

•make appropriate arrangements in accordance with the practice’s policy on clients with a disability; and

•where disability (or language difficulties) make it impossible to communicate directly with the client, arrange for an interpreter or person trained in communication skills to attend so that instructions can be taken independently of potential beneficiaries.

91/132

Arrangements for third parties present at interview

There are two obligations in the Protocol (obligations 1.2 and 1.3) intended to address the issue of undue influence. Before the interview To help avoid any later allegation of undue influence, explain to clients why it is preferable to take instructions in the absence of potential beneficiaries or anyone who might exert undue influence (obligation 1.2).

If the client chooses to have such a person present Record the advice given and the client’s response and preserve as part of the will file (obligation 1.2). When taking instructions with another person present •Be alert to the possibility of undue influence and the added difficulty of assessing testamentary capacity when another person is present.

•Do not continue to act if there is evidence of undue influence (obligation 1.3).

Following these obligations will also help you to demonstrate compliance with SRA Principle 5 (best interests), outcome O(1.3) and indicative behaviours IB(1.6) and (1.28) of the SRA Code of Conduct 2011.

92/132

Arrangements for previous wills

The obligations in section 1.6 of the Protocol are intended to deal with the issues arising from any wills made previously by the client. Following these obligations will help you to reduce the potential for future disputes and to clarify the reasons for changes to the client’s testamentary wishes.

These obligations require you to:

•establish whether the client has made any earlier will(s);

•if there are earlier will(s) prepared by the practice, obtain and read the will file and the earlier will;

•if there are earlier will(s) which the practice did not prepare:- ask the client to bring the original(s) or copies, if available; and- ask the client for permission, where another practice is storing the

original(s), for you to request that the other practice sends the original will(s).

Where there is an earlier will, the Protocol also requires you to: •discuss with the client the reasons for changes from the earlier will(s) (1.6.4); and •check whether the earlier will(s) raises further issues that need dealing with (2.9).

93/132

Question 7


TrueTrue FalseFalse


If, despite an explanation of the reasons making it inadvisable, a client insists on having a potential beneficiary present when giving instructions for a will, you should record the advice given and the client’s response and preserve the record as part of the will file.

94/132

Question 7




See obligation 1.2 of the Protocol.

FalseFalseTrueTrue

If, despite an explanation of the reasons making it inadvisable, a client insists on having a potential beneficiary present when giving instructions for a will, you should record the advice given and the client’s response and preserve the record as part of the will file.

95/132

Taking instructions

Section 2 of the Protocol is concerned with the following issues arising from taking instructions for drafting a will. •urgent instructions;•attendance notes;•non-face-to-face instructions;•time limits for preparation of a will;•gathering information;•personal assets log;•ascertaining testamentary capacity;•potential for financial abuse; and•consideration of earlier wills. We will now look in more detail at three of these areas: attendance notes, time limits and testamentary capacity.

96/132

Use of attendance notes

A practice will have a procedure for recording key information on the file to comply with the CPMS/Lexcel.

A practice will also have a template for making attendance notes of meetings where instructions are given for drafting a will (will drafting practice policy WP.6).

97/132

Proper recording and filing of attendance notes are key to:

•ensuring that all relevant information is collected from the client during meetings;•ensuring the practice carries out its client’s instructions; and•recording advice given and decisions made. Attendance notes of meetings with clients to take will drafting instructions are also important evidence of testamentary capacity to protect wills from future challenge.

Obligations regarding attendance notes

The obligations regarding the use of attendance notes are found in section 2.2 of the Protocol. Among other obligations in this section are requirements to: •Use a template to record interview notes in accordance with the practice’s policy on attendance notes and preserve the attendance note as part of the will file.

•Make a detailed and contemporaneous note of:

- domicile of the client and any spouse and civil partner;- assets and liabilities;- names of family and dependants;- advice given;- the client‘s testamentary wishes;- your assessment of the client’s testamentary capacity, the questions

asked to establish it and the client’s responses; and- whether there is anything to suggest possible undue influence.

•Wherever appropriate, record the actual words of the client.

•In the case of elderly or ill clients, consider whether it is prudent to ask them to sign the attendance note to confirm that it is an accurate record of what was agreed at the interview.

98/132

Time limits

Obligation 2.4 of the Protocol introduces time limits for the preparation of a will. At the time instructions are received from the client, you must agree a date for preparation of the will which: •is acceptable to the client; and

•reflects any need for urgency.

Subject to contrary agreement, once the client has provided all the information required to complete the agreed instructions you must: •send the draft will within seven working days;

•send the final version for execution within seven working days of approval of draft; or

•if drafts are not supplied, send the will for execution within 10 working days.

99/132

When the client does not respond

Clients sometimes simply ‘don’t get round to’ dealing with their will or are embarrassed to ask for changes. This may lead to a situation where the client does not respond to your letter enclosing a draft will for approval.

The Protocol seeks to resolve this issue in obligation 15 as follows:

•If a client does not respond within a reasonable period after you have sent a draft will for approval or a will for execution, write to the client:

- explaining that you have carried out the terms of the retainer and will take no further steps unless instructed to do so;

- explaining that you will make any alterations to the will that the client instructs; and

- reminding the client of the way in which the estate will devolve if the will is not executed.

•If there is no response to this letter, send two further reminder letters, at reasonable intervals.

•If nothing further is heard after these two reminder letters, present a bill for the work done.

100/132

Problems keeping to the agreed time frame

On occasion a fee earner with conduct of a client’s matter may have difficulty keeping to the original time frame for completion of the work. This might be due to, for example, unexpected workloads, illness or unforeseen events.

Should this be the case, obligation 12 of the Protocol requires that you either:

• arrange for another member of the practice to take over the work, making sure that the instructions are clear and unambiguous and that supervision arrangements are in place to check the work done; or

• renegotiate the time for delivery with the client, making sure that this does not carry any unacceptable risk for the client.

If there is to be a change to the person with conduct of the matter, you must ensure that the client is informed in writing of the name and status of any new person dealing with the matter as soon as possible.

Remember that your practice will also have supervision procedures in place, required by the CPMS/Lexcel v.5, to ensure that key dates are met, to monitor files for inactivity, and to manage workloads of fee earners.

101/132

Question 8


TrueTrue FalseFalse


Subject to contrary agreement, once the client has provided all the information required to complete the agreed instructions you must send the final version for execution within seven working days.

102/132

Question 8




Subject to contrary agreement, once the client has provided all the information required to complete the agreed instructions you must •send the draft will within seven working days;•send the final version for execution within seven working days of approval of draft; or•if drafts are not supplied, send the Will for execution within 10 working days.

Subject to contrary agreement, once the client has provided all the information required to complete the agreed instructions you must send the final version for execution within seven working days.

TrueTrue FalseFalse

103/132

The risk of a challenge to a will on grounds of capacity

It is increasingly common for wills to be challenged on the basis of lack of testamentary capacity. The criteria for testamentary capacity remain those set out by the Lord Chief Justice in Banks v. Goodfellow (1870) LR 5 QB 549. The Protocol addresses this issue in section 2.7 by providing a reminder of the ‘golden rule’ set out for solicitors by Templeman J. in Kenward v. Adams [1975] CLY 3591, and by a series of obligations to follow depending on the circumstances.

104/132

Ascertaining testamentary capacity

The ‘golden rule’Obtaining a medical

opinionNot obtaining a medical opinion

Banks v. GoodfellowRecording

assessments of capacity

Clients who lack capacity

If uncertain of the client’s capacity


105/132

In Kenward v. Adams, Templeman J stated that: ’…in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken. The making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.’

It is important to remember that the so-called ’golden rule’ is not a rule of law, it is merely a statement of good practice.

A failure to obtain a medical opinion does not invalidate the will. It simply means that there is no contemporaneous medical evidence to assist the court in the event of a dispute as to testamentary capacity.

The ‘golden rule’


106/132







Obligation 2.7.8 of the Protocol contains the following steps to take when you have decided to obtain a medical opinion of the client’s testamentary capacity: •instruct a medical practitioner with appropriate expertise in the assessment of capacity;•provide clear written guidance for the medical practitioner on the legal test of testamentary capacity;•with the client’s consent, give the medical practitioner an outline explanation of the complexity of the client’s affairs and the proposed dispositions of the estate; and•ensure that the assessment is as close as possible to the time when instructions are given and the will is executed, as capacity can fluctuate. When seeking to obtain a medical opinion the Protocol also recommends that, if possible, the medical practitioner should be present at execution even if, as is often the case, professional regulations prevent them acting as a witness.

Obtaining a medical opinion


107/132







The Protocol recognises that it is not always possible to follow the ‘golden rule’ (for example, the client may refuse consent to your obtaining a medical opinion). Obligations 2.7.2 and 2.7.3 set out good practice when not obtaining a medical opinion as follows: •explain to the client that if the will is challenged on the basis of lack of capacity, the lack of a contemporaneous medical opinion may make the challenge more likely to succeed; •ask the client to confirm that they wish to continue, record the advice given and client’s decision, and preserve as part of the will file;•ask the client open questions to establish whether or not the client appears to fulfill the test of testamentary capacity as set out in Banks v. Goodfellow; •try to establish whether the client can retain information relevant to the decision, use or weigh that information, and communicate his/her decisions; and•record the questions asked to establish capacity, the client’s responses, and your assessment of capacity and preserve in the will file.

Not obtaining a medical opinion


108/132







According to the criteria for testamentary capacity set out in Banks v. Goodfellow the client should:

•understand the nature of the will-making act and its effects;•understand the extent of the property of which the client is disposing;•comprehend and appreciate the claims to which the client ought to give effect;•not suffer from any disorder of the mind or delusion that:

- prevents rational consideration of these matters; and- produces a disposition which the client would not otherwise have made.

The Protocol does not attempt to give comprehensive guidance on all the issues relating to the assessment of capacity. To find out more about the assessment of capacity after this course, it is recommended that you refer to the Assessment of Mental Capacity: A practical guide for doctors and lawyers third edition (Law Society, 2010) and the provisions of the Mental Capacity Act 2005.

Banks v Goodfellow


109/132







When carrying out an assessment of mental capacity, obligation 2.7.3 of the Protocol requires you to record and preserve as part of the will file: •the questions asked; •the client’s replies; and •your assessment of the client’s capacity. It is important in order to protect the will against future claims that the record of your assessment of testamentary capacity is detailed, contemporaneous and that you have applied the correct criteria.

Recording assessments of capacity


110/132







If, after carrying out and recording your assessment of capacity, you find that the client lacks testamentary capacity, the Protocol sets out the following obligations at 2.7.5: •consider whether the client’s capacity may fluctuate so that it might be possible to take instructions at a later date and, if so, arrange a further appointment;•consider the likelihood that seeing the client on a different time of day and/or in a different environment, e.g. at home, may improve the client’s testamentary capacity;and•where it appears unlikely that the client will recover capacity, have regard to the Law Society’s Financial Abuse Practice Note. The relevant part of the Practice Note is para.4.3.2, under the heading ‘What happens when someone lacks capacity’.



111/132







If, after carrying out and recording your assessment of capacity you remain uncertain, on the balance of probabilities, that the client has testamentary capacity, the Protocol requires you to consider whether it may still be in the client’s best interests to make the will (obligation 2.7.6). In such circumstances it will be particularly important to:

•explain the situation to the client;•obtain confirmation that the client wishes to proceed; and•prepare and preserve as part of the will file the attendance note setting out:

- the reasons for uncertainty as to the client’s testamentary capacity; and- the reasons for continuing to make the will.



112/132







Question 9


TrueTrue FalseFalse


If making a will for an aged or ill client without obtaining a medical opinion, there are various steps that you should take. These include:

•asking the client open questions to establish whether or not the client appears to fulfill the test of testamentary capacity as set out in Banks v. Goodfellow.

•Recording and preserving as part of the will file:- the questions asked; - the replies of the client; and- your assessment of the client’s capacity.

113/132

Question 9


FalseFalse


If making a will for an aged or ill client without obtaining a medical opinion, there are various steps that you should take. These include:

•asking the client open questions to establish whether or not the client appears to fulfill the test of testamentary capacity as set out in Banks v. Goodfellow.

•Recording and preserving as part of the will file:- the questions asked; - the replies of the client; and- your assessment of the client’s capacity.


See obligation 2.7.3.

TrueTrue

114/132

Recording knowledge and approval

Before executionWhen taking instructions


Lack of knowledge and approval of the contents of the will is often an easier ground for challenge than lack of testamentary capacity or undue influence. The Protocol aims to reduce the risk of misunderstandings between the client and will drafter and to ensure clear records are kept.

115/132


When taking instructions

Clients often have to make decisions as to the content of their will based on the advice you give them. Obligation 11.1 requires you to:

•provide the client with a written record of:

- the advice on the basis of which decisions were taken;- the decisions made; and

•preserve a copy of the record as part of the will file.




116/132


Before the will is executed

To establish that the will carries out the client’s instructions and that the client does not wish to amend those instructions, obligation 13 requires you to: •Send the client either:

- a copy of the instructions for the will agreed at the interview; or -a draft of the will together with a letter explaining its effect using clear, understandable language, and avoiding technical terms and expressions.

•In cases where the client has difficulty understanding written material, take appropriate steps to explain the draft. This will normally require a second visit unless alternative suitable arrangements have been agreed.

•If the will is not written in the client’s first language, ensure that the client understands the will. This may require the use of an interpreter and consideration of whether the interpreter is sufficiently independent.




117/132

Question 10


TrueTrue FalseFalse


Before the execution of the will, to comply with the Protocol, you must send to the client a copy of the instructions agreed at the interview to establish that the will correctly carries out the client’s instructions and that the client does not wish to amend them.

118/132

Question 10



Obligation 13 states that you can confirm the client’s instructions by sending the client either a copy of the instructions or a draft of the will together with a letter explaining its effect.

TrueTrue

Before the execution of the will, to comply with the Protocol, you must send to the client a copy of the instructions agreed at the interview to establish that the will correctly carries out the client’s instructions and that the client does not wish to amend them.

FalseFalse


119/132

Arranging and checking correct execution are important parts of the will drafting process.

Arranging and checking execution

Checking correct executionArrangements for execution


120/132


Arrangements for execution

Obligations 14.1-14.4 of the Protocol require you to:

•offer clients a choice between:

- having the execution supervised at your office or by a home visit; or- making their own arrangements with full written instructions provided by

you;

•make it clear whether the cost of supervised execution is included in the fee charged for preparation of the will;•consider, in the case of clients with a disability, whether a home visit is a ‘reasonable adjustment’, in which case a separate charge is unlawful; and•if the offer of supervised execution is declined, provide the client with clear instructions as to the choice of witnesses and the procedure for signing and witnessing the will.



121/132



Checking correct execution After unsupervised execution, obligation 14.5 requires you to offer to inspect the will (or a copy of it) without charging an additional fee, to check that: •the formalities appear to have been properly complied with; and:•the witnesses do not appear to be beneficiaries, or spouses or civil partners of beneficiaries. If the will is returned to you for storage, obligation 14.6 requires you to carry out the inspection above as a matter of course.



122/132


Question 11


TrueTrue FalseFalse


The Protocol does not permit you to make a charge for overseeing the execution of a will you have drafted.

123/132

Question 11



You can charge for overseeing execution of a will you have drafted provided that you have made it clear in your retainer that supervised execution is not included in the standard charge. If the client has a disability, however, a home visit may be a reasonable adjustment in which case you cannot charge.


The Protocol does not permit you to make a charge for overseeing the execution of a will you have drafted.

FalseFalseTrueTrue

124/132

There is little point in a client making a will if it cannot be found after death. The Protocol addresses the issues of storage and file closure in Section 16.

Storage and file closure

Advise on the options for storagePrecautions against missing

wills

Your storage facilityEarlier wills Closing the file


125/132


Precautions against missing wills

Obligation 16.1 of the Protocol requires you to:

•explain to the client the importance of informing future personal representatives of the location of the will;•recommend the use of the Law Society’s Personal Assets Log or similar document to convey that information; and •consider with the client the option of using a wills registration service.

An example of a wills registration service is the Certainty National Will Register and Will Search service. For more details, visit http://www.lawsociety.org.uk/member-benefits.



126/132


wills



Advise on the options for storage

Obligation 16.2 of the Protocol requires you to inform clients of the options available to them for storage of their will.

You must advise the client that wills can be stored with:

•your practice (if you offer this service);•the Probate Registry;•a bank;•the client; or•a commercial provider.



127/132


wills



Earlier wills

Obligation 16.3 requires you to discuss with the client what is to happen to any earlier will he/she has made in order to:

•ensure that there is a record of previous wills; and•limit the risk of a revoked will being proved by mistake.



128/132


wills



Your storage facility

If your practice operates a storage facility, you must comply with the requirements of obligation 16.4 to: •ensure the client understands that use of the service is not compulsory;•make clear the basis of charges;•ensure that any charges are fair and reasonable;•provide your client with a copy of the will and a note explaining where the original is stored;•inform the client if the practice changes its name, ceases trading, or ceases to offer a will storage facility;•ensure that there is an efficient registration and retrieval system;•ensure that wills are stored securely and in appropriate conditions; and•limit persons who can access wills.



129/132


wills



Closing the file

Section 17 of the Protocol provides a brief checklist of matters to consider when closing the file of a will drafting matter, as follows:

•return any documents to which the client is entitled;•review the file to ensure that documents and correspondence are stored correctly and discard any scrap or duplicate copies; •if storing the original will, ensure that it is correctly registered in accordance with the practice’s registration system; and•store the file in accordance with the practice’s file retention policy.

The CPMS/Lexcel requires a practice to have a procedure for closing matters, which includes more detailed requirements than the Protocol. These standards also require the fee earner to carry out an operational risk assessment at this stage.



130/132


wills


Resources

Criminal property does not include property located overseas.

Books

•Assessment of Mental Capacity

•Wills and Inheritance Protocol

•Wills and Inheritance Quality Scheme Toolkit

•Will Draftsman’s Handbook Law Society Practice Notes

•Publicising Solicitors’ Charges Practice Note

•Financial Abuse Practice Note

Other documents

•WIQS Client Service Charter

•WIQS Practice Agreement

131/132

Next steps

This concludes the WIQS – Protocol: Will Drafting course presentation. CPD hours Completion of this course qualifies for 1.5 CPD hours. To claim your CPD hours and to partly fulfil the requirements of the WIQS, you must also complete an assessment. Assessment The assessment is comprised of 15 multiple-choice questions on issues raised in the course presentation. To begin the assessment, close this window and return to the Course Activity screen in the CPD Centre. From there, you can launch the assessment by clicking the link shown on the right of that screen.

Close this window and return to the Course Activity screen.

132/132

wiqs – protocol: will drafting 01/132 i have taken wiqs - protocol: estate administration course i...

Documents

wiqs protocol

wiqs protocol

training relevant persons

training courses

training requirements

online course

estate administration

protocol relevant