Wills: Help with judgement calls
Solicitors can give client-care information verbally if a client urgently needs a will due to the coronavirus, the Solicitors Regulation Authority has confirmed.
With legal and compliance issues around wills the topic of much debate in recent days, the SRA has updated its guidance also to help solicitors who have to make a “judgement call” on complying with the legal requirements for executing wills.
There is pressure on the government to relax the provisions of the Wills Act 1837 to assist with making wills at a time of lockdown and social distancing.
The guidance said that, if there was a “good reason” why a client care letter was not practical and it was in the client’s best interest to move rapidly, “then there is nothing in our rules to prevent you from doing this verbally”.
It suggested the solicitor evidence this in an attendance note or other record.
While firms are required to deliver details of their complaints procedure and the right to make a complaint to the Legal Ombudsman in writing at the outset of a retainer, the SRA said it would not take action if there was a good reason “resulting from the current coronavirus crisis” for not doing so, again so long as the information was provided verbally and documented.
For solicitors having to make a judgement call around compliance with certain legal requirements, such as the execution of wills, the SRA highlighted the core requirement to act in the best interests of the client.
“The risk to the client and their beneficiaries of an invalid will are obvious and significant.
“We appreciate that current circumstances may require you to make some difficult and novel judgments. For instance, if you are supervising the execution of a will by someone in a care home, you will be unable to attend physically to supervise so will need to issue clear instructions on how the will can be properly executed by the testator and for example care workers as witnesses.
“It may be possible to supervise the process electronically, eg through video or other virtual means. If you are making such judgment calls, we expect you to keep appropriate records of your decisions and how you made sure you were complying with our principles.
“These could be by making full and prompt files notes, by recording in a video the advice given and the circumstances surrounding the testator’s signature and so on.”
Meanwhile, the Law Society has issued guidance on furloughing for trainee solicitors, saying it can apply to them as any employee.
It noted that the SRA has stated that trainees could be supervised remotely and that it was their employer’s responsibility to make suitable arrangements. “Therefore, working from home does not need to mean that a trainee should be furloughed,” the society said.
It added: “We are aware of concerns around the impact of being furloughed on timescales for qualifying and we’re continuing to engage with the SRA to support those entering the profession.”
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