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Ethics in Practice

This article discusses in main the ethical considerations arising from the appointment of a solicitor who drafted a client’s will, or another solicitor from the same law practice, as an executor and trustee under that will. This article will also highlight some key guidelines that solicitors should take heed when drafting a will for a client, and/or acting as a witness under the will.
 
The Ethics Committee, a committee of the Council of the Law Society, is tasked with providing guidance to members on their ethical obligations. Members can submit a written enquiry to the Committee through the Representation and Law Reform Department at [email protected] For detailed guidelines for enquiries to the Committee, please refer to the Council’s Practice Direction 2 of 2009 which can be found on the Legal Ethics section of the Law Society’s website at www.lawsociety.org.sg.
 
As the Committee has omitted facts which are not considered crucial to the ethical obligations of the lawyer in question or to the guidance given, members are advised to write to the Committee for a specific opinion on their query in order to receive the Committee’s specific guidance. Neither the Committee nor the Law Society shall be liable in rendering the Committee’s opinions or for anything a member does or omits based on this article and without seeking a formal opinion on the facts of their case from the Committee.

 
Ethical Considerations in Preparing and Witnessing the Execution of a Will

Recently, the Ethics Committee was asked to consider, where a solicitor drafts a client’s will, whether:
1.    the solicitor can be appointed as the executor/trustee of the  same will if he is not a beneficiary or legatee under the will;
        and
 
2.    another solicitor from the same law practice can be appointed as the executor/trustee of the same will.
 
Ethics Committee’s Guidance

 
The Ethics Committee’s guidance was as follows:
1.    There is no ethical rule prohibiting a solicitor who drafted his  client’s will or another solicitor from the same law practice from being 
        appointed as the executor/trustee under that will, if  the solicitor who is acting as executor/trustee is not a beneficiary/legatee under 
        the  will. This practice has also not been held to be improper in Singapore and English cases: see eg, Rajaratnam Kumar v Estate of 
        Rajaratnam  Saravana Muthu (deceased) and another
[2010] 4 SLR 93 andIn Re Horgan, Decd[1971] P. 50.
 
2.   Rule 46 of the Legal Profession (Professional Conduct) Rules (“PCR”) only prohibits a solicitor from acting for the client in preparing a will
       under which he would receive a significant gift, whether as a beneficiary or otherwise (see: the Law Society’s Guide to Professional Conduct 
       for  Advocates and Solicitors,
p 31).

3.    Where r 46 of the PCR does not apply, a solicitor who drafted the will, or another solicitor in the same law practice can be appointed as the
        executor/trustee under the same will. Nevertheless, a solicitor acting as an executor/trustee under a will ought to bear in mind the
        following principles:
        a.     “A solicitor-trustee acting on behalf of a trust estate is not, in the absence of a clause giving him that power in the will under which
                 he is a trustee, entitled to charge or recover anything from the trust estate for profit costs”: Halsbury’s Laws of England,Vol 66 at
                 para 811 (5th Ed, 2009). The same rule applies to him in regard to executorship: In re Barber, Burgess v Vinicome34  ChD 77 at 80.
                 The solicitor would be entitled to out of pocket expenditure, but not to profit from being an executor. This principle is based on the
                 consideration that equity will not allow a man to place himself in a position in which his interest and duty are in conflict.
 
       b.    A solicitor should not act if a conflict of interest arises, for example, under rr 25(a) and 26 PCR.“If the solicitor might be perceived as anything
              less than a completely independent adviser to the testator, he ought not, as a matter of good practice, to be involved in the explanation, the 
              interpretation and the execution of the  will. In particular, exceptional restraint and care are called for if the solicitor concerned has a pre-existing
              relationship and/or past dealings with the sole beneficiary under a will, and all the more so if the will has been prepared urgently and executed
              in unusual circumstances with that sole beneficiary’s active involvement”: see Low Ah Cheow v Ng Hock Guan [2009] 3 SLR(R) 1079 (“Low Ah
              Cheow”)
at [74], cited with approval in Chee Mu Lin Muriel v Chee Ka Lin Caroline (“Chee Mu Lin”) [2010] 4 SLR 373 at [61].
 
       c.    As the solicitor is effectively his firm’s client, it may be good practice for the solicitor to provide some information to the beneficiaries under the
              will, such as the type of work to be carried out and approximate timescales: see UK Solicitors’ Code of Conduct r 2.02(26). Care must,
              however, be taken to ensure that unless the solicitor intends to treat the beneficiaries under the will as his clients, he should not act in
              such a manner that an implied retainer may be construed to arise between him and the beneficiaries: see Law Society of Singapore v Ahamd
              Khalis bin Abdul Ghani
[2006] 4 SLR(R) 308.
 
Case Law Developments
 
Apart from the Committee’s guidance above, the Committee notes that in several recent Singapore cases, the Courts have made observations on the professional responsibilities that a solicitor preparing a will and/or witnessing the execution of a will should observe and discharge. In Low Ah Cheowat [73], the Court of Appeal observed that:
 

The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays, solicitors appear to consider the preparation of a will to be no more than a routine exercise in form filling. This is wrong.Before preparing a will, the solicitor concerned ought to have a thorough discussion  with the testator on all the possible legal  issues and potential complications that might arise in the implementation of the terms of the will. The solicitor ought to painstakingly and accurately  document his discussions with and his instructions from the testator. He should also confirm with the testator, prior to the execution of the will, that the contents of the will as drafted accurately express the latter’s intention.A translation, if required, must be thoroughly and competently done. Half measures or the cutting of corners in the discharge of these serious professional responsibilities will not do. (Emphasis added).
 

The above paragraph was cited with approval in Chee Mu Lin at [61] and Soh Eng Beng v Soh Eng Koon[2010] SGHC 257 at [25]. Further, in Chee Mu Lin, the Court of Appeal elaborated on the duties of solicitors who undertake the task for preparing wills and/or witnessing the execution of wills to ensure that the terms of the will reflect the wishes of the testator, particularly where the testator is known to be suffering from any mental infirmity. In this regard, the Court of Appeal stated at [60] that:
 

In our view, this case demonstrates that solicitors who undertake the task of preparing wills and/or witnessing the execution of wills must take the necessary precautions or steps in order to fulfil their duties to their clients.The precautions are not complicated nor are they time consuming. In any case, as solicitors, they must do what is required, however complicated or difficult the task may be. The central task is to ensure that the terms of the will reflect the wishes of the testator. How this is done depends on the circumstances of each case. In every case, the solicitor should be cautious about taking instructions from any person who is to be named as a beneficiary in the will. If a testator is known to be suffering from any mental infirmity, a doctor should be called to certify her mental capacity before she is allowed to sign the will to ensure that such a testator fully understands the will.In the case of a person with mental infirmities like Mdm Goh, it should have included attending on Mdm Goh personally to take instructions from her, providing her with and explaining a draft of the will to her, and if there is any doubt as to her mental capacity, to advise that a psychiatrist (or some other qualified medical practitioner) attend on her to assess her mental capacity. Furthermore, the solicitor should ask the appropriate questions to ascertain the testator’s capacity to understand the contents of the will. The testator should be asked as simple a question as whether he or she is making a will for the first time or whether he or she had made a will previously. In the latter case, the solicitor should ask whether the testator knows that he or she is revoking the existing will. These questions may be formulaic, but they are necessary to avoid cases such as this. Finally, as a matter of good professional practice, if not professional prudence, the solicitor should make a contemporary written record of his or her attendances on the testator so that he or she would be able to recall exactly what had transpired during the meeting or meetings…  .    (Emphasis added).
 

The principles and guidelines outlined in the cases highlighted above would no doubt be useful reference for practitioners involved in drafting wills and/or witnessing the execution of wills.
 
Ethics Committee

The Law Society of Singapore
 
Notes
1     Gift by will or inter vivos from client 
      
46.   Where a client intends to make a significant gift by will or inter vivos, or in any other manner, to —
       (a)    an advocate and solicitor acting for him;
       (b)    any member of the law firm of the advocate and solicitor;

       (c)    any member, director or employee of the law corporation of the advocate and solicitor;
       (ca)  any partner or employee of the limited liability law partnership of the advocate and solicitor; or
       (d)    any member of the family of the advocate and solicitor, the advocate and solicitor shall not act for the client and shall advise
                the client to be independently advised in respect of the gift.