Married couples or Civil partners – Should you see

 In Wills

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Following the coming into effect of Outcomes Focused Regulation (OFR) the vexed question of how to approach taking Will instructions from couples raises its head even more starkly.  This piece tries to spot the traps.

Who is the client?

Is it each individual person in a marriage who is the client or the married couple as some kind of entity?

Our professional Guide used to say:

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“Where a solicitor is acting for two or more clients, whether they be a husband and wife…… the solicitor always owes a duty to each individual body or person and he or she must advise each individual what is in that individual’s interests.”

Under Outcome Focused Regulation (OFR) Principle 4 says:

“You should always act in good faith and do your best for each of your clients. Most importantly, you should observe:

(a) Your duty of confidentiality to the client – see Chapter 4 (Confidentiality and Disclosure) of the Code; and

(b) Your obligations with regard to conflicts of interests – see Chapter 3 (Conflicts of Interests) of the Code.”

Each party to the marriage will be a separate client (unless they are making Mutual Wills possibly) and theoretically a firm can therefore act for either or both of them at any time subject to the rules on conflicts of interest and confidentiality.

Conflicts of interest

It is necessary to consider as a first step whether the parties are likely to present conflicts of interest and explain why it may be best for each person to be separately represented.

Obviously a solicitor must not act where a conflict of interest (or a significant risk of conflict) arises between two or more clients. Outcome 3.6 in the OFR says:

“Where there is a client conflict and the clients have a substantially common interest in relation to a matter or a particular aspect of it, you only act if:

(a) You have explained the relevant issues and risks to the clients and you have a reasonable belief that they understand those issues and risks;

(b) All the clients have given informed consent in writing to you acting;

(c) You are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests; and

(d) You are satisfied that the benefits to the clients of you doing so outweigh the risks.”

In a remarriage situation it may therefore make sense to initially ensure that both parties to the marriage sign separate Terms of Business. On its own this is not sufficient and an explanation as to how each are entitled to separate representation should a conflict arise or risk that it could arise become apparent. Also, it may be prudent to obtain there informed consent in writing to you acting on behalf of them both.

If the husband and wife are then seen together and their Wills are prepared on the basis of this open discourse then there will not be confidential information obtained as between them. This would mean that if say the wife subsequently asked you to change her Will you could in fact act for her since the information you had about the husband would not be relevant confidential information that would stop you acting for the wife since she already knows this information. However, should the husband subsequently ask you to change his Will you would not be able to do so because by then you would have relevant confidential information about the wife.

If each party had come to see you separately in the first place then receiving subsequent instructions from either of them to revise their Will would be more likely to pose a problem as there was not the open discourse between them at the start.

Duty of confidentiality

Principle 2 of OFR says that solicitors must act with integrity – so acting for one party to a marriage may in theory not be a conflict of interest but it does not sit well with our duties to provide clients with the information they need to make informed decisions and the duty of confidentiality.

Chapter 4 of the OFR states in outcome 4.1:

“You must keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents.”

Please note for the purposes of OFR ‘Client’ includes both a current client and a former client.

Outcome 4.2 says that any individual who is advising a client must make that client aware of all information material to that retainer of which the individual has personal knowledge and outcome 4.3 goes on you say that you must ensure that where your duty of confidentiality to one client comes into conflict with your duty of disclosure to another client, your duty of confidentiality take precedence.

Practical problems inevitably arise where the second wife, say, comes to instruct the firm to make a new Will because relations with the husband are not good and she attends the office with a third party such as a relative, friend or new ‘man’. You would have to be careful not to disclose information about the husband to the third party as you have a duty to keep that confidential and this continues even after the retainer with that client has ended.

However, what about the need which may now arise for the husband to make a new Will in the light of the revisions to the second wife’s Will. You have a duty to inform a client of any matter which may be relevant to that client. How does that work as far as the duty of confidentiality is concerned for the second wife?

Is the retainer to the husband on-going or has it ended? The duty to pass on information to a client definitely exists where the retainer is on-going. Under the 2007 Code of Conduct the termination of the retainer brought this duty to pass on information to an end. However, given the OFR refers to ‘client’ as ‘where the context permits, includes prospective and former clients’ the issue is far from clear.

The issue is perhaps a moral one – should you act for one party to a marriage at all where you have acted for both parties before given the potential conflict between the duty to inform and the duty to keep a client’s affairs confidential? A fear of being in breach of our rules of conduct may be justification for terminating a retainer.

Undue influence

We know we must ensure that there is no undue influence from any quarter in taking Will instructions, whether from potential new partners or indeed, in the case of older couples, from children who may only have their own interests at heart.

A cautionary tale

If both parties to a marriage have used your firm previously in making mirror Wills care should be taken over whether following their separation or divorce the firm can act for one party only in making a new Will or codicil.

Hines v Willans [2002] WTLR 299

In this case the deceased and his wife had both been married before. The deceased’s solicitor had acted for him before his second marriage. He drew up Wills for the couple before their marriage in 1984 and undertook a variety of legal work for them but they never entered into a general retainer with him.

The deceased had alcohol problems and in June 1989 he instructed his solicitor that he wanted a divorce and a sale of the house that he owned. The solicitor wrote to Mrs Willans saying that he intended to accept the deceased’s instructions and recommended her to a local solicitor whom she saw.

Despite this the matter went no further and subsequently the deceased instructed the solicitor to transfer the property into the parties’ joint names. Following receipt of this instruction the solicitor wrote to both the deceased and Mrs Willans saying it was important to meet to discuss their Wills now that the house was jointly owned. This meeting did not take place and the Conveyancing matter was concluded.

By July 1990 matters came to a head. The deceased had been drinking and phoned the solicitor saying he wanted to get rid of Mrs Willans. He handed the phone to Mrs Willans. The solicitor advised her to depart and he would look after the deceased but asked her to keep in touch. He subsequently made an attendance note. She went away and on her return she rang the solicitor to make an appointment to see him. The earliest time he could see her was three days hence.

Meanwhile, the deceased became very drunk and a violent scene occurred culminating in him turning up at the solicitor’s house at 10pm declaring he wanted to commit suicide and demanding a new Will which disinherited Mrs Willans and favoured his two children. The solicitor prepared the document in manuscript and witnessed it along with his wife. He advised the deceased to sever the joint tenancy of the property and obtained the deceased’s signature to a blank piece of paper on which the solicitor typed up the notice of severance the next day.

The deceased did attempt suicide and was admitted to a psychiatric hospital from which he escaped. He rang the solicitor and said he wanted to vary the new Will by limiting the gifts to his children to £25,000 each and leaving the residue to Mrs Willans. When she attended at the solicitor’s office for her pre-arranged appointment the solicitor served her with the notice of severance. The deceased’s body was found the following day.

The solicitor then wrote to Mrs Willans saying that having regard to the content of the deceased’s last Will he thought it was his duty to point out to her that a potential conflict of interest arose between her and the deceased’s children and that she had a right to consult another solicitor. He said it would be sensible for her to do so but concluded by saying:

“As you know I have been the family solicitor for many years and in any event it was the deceased’s wish that I would handle the affairs of his estate in the event of death.”

Inevitably there followed contested probate proceedings between the deceased’s children and Mrs Willans. The Health Authority accepted responsibility for the escape from care of the deceased and supported Mrs Willans in the probate action on the basis that she would pursue a claim against the solicitor. She was successful and an order for the payment of the probate action costs plus interest was ordered to be reimbursed by the solicitor. He appealed but failed because within the relationship between the solicitor and Mrs Willans were four strong strands which determined liability:

  • The making of reciprocal Wills & the solicitor’s continuing advice on testamentary matters which suggested a continuing solicitor-client relationship with both husband and wife;
  • There was a transfer of property into joint names when the solicitor was clearly acting for both husband and wife;
  • The conversations between the spouses and the solicitor when he advised Mrs Willans to depart and he would deal with the deceased invited her to rely on him;
  • On 20th July Mrs Willans rang the solicitor in order to make an appointment to see him but this could not happen at that time. However, she had relied on him for support throughout and the appointment was fixed and pending when the solicitor was faced with the deceased’s demands which were in clear breach of the solicitor-client relationship with Mrs Willans

Lord Justice Waller said that there will be circumstances in which a solicitor should feel embarrassed to act vis a vis someone for whom they have acted, even after the account has been rendered and the specific business finished. If that is so, the law ought to recognise a continuing obligation. Where, for example, joint instructions have been given on a particular matter on which the solicitor has acted in their joint interests and to protect those interests, there must be serious doubts as to whether the limit on the ability of the solicitor to act for only one party against the interests of the other (despite the account being rendered and paid), was limited simply to a situation in which the use of confidential information was involved.

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