Roles and Responsibilities of the Wills and Estates Solicitor | Farha Salim
Drafting Wills and Trusts (2016/2017)
Lawyers must perform all legal services to the standard of a competent lawyer. Roles and Responsibilities of the Wills and Estates Solicitor, presented by Farha Salim, sets out the standard for a competent wills and estates solicitor. It covers a lawyer’s responsibilities when preparing a will, including potential issues concerning timing, accuracy of information, execution of the will, and liability to appointed beneficiaries.
Read a summary of this paper below.
According to Salim, When preparing a will, a lawyer must go beyond discerning the testator’s wishes and must make the necessary inquiries to ensure the provisions of the will honour and give proper legal expression to the testator’s wishes. In particular, the lawyer must be satisfied that the client has the required capacity when providing instructions for the will and at the time of executing it. Determining capacity may require making further inquiries, the extent of which will depend on the circumstances.
Once the lawyer has received instructions for the will and has made the necessary inquiries, it is important that the lawyer prepare the will in a reasonable time. The paper highlights case law concerning unreasonable delay, for example, where the will is not prepared before the testator dies.
While solicitors should be wary of lengthy delay, they should take the time needed to ensure the accuracy of information provided to them by the client. Issues may arise where a client seeks to gift property that he or she does not own personally (i.e. property owned under a company name). If a lawyer is not careful to make inquiries into the ownership of the property, a gift may fail. Thus, when preparing a will, it is important to weigh time restrictions against inquiries into title.
A lawyer must also have the reasonable knowledge and skill required to ensure proper execution of the will. This includes knowing who is and is not eligible to witness the signing of a will, as well as giving thorough and complete instructions to the client as to who is and is not a suitable witness.
Failure to meet the standard of care could result in liability to a disappointed beneficiary. The paper discusses the reasons for extending liability to beneficiaries and outlines its limit. The paper also proposes that lawyers exercise practice management skills. By confirming administrative requirements such as fees, potential outcomes, and timelines, a lawyer can reduce the potential for errors or complaints.
In conclusion, this paper highlights the steps that lawyers must perform to meet the standard of care required of a competent lawyer and discusses the roles and responsibilities of a solicitor in a wills and estates practice.
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