A STEP member would like advice when dealing with existing clients who later separate or divorce and one of them, or both of them, would like to alter their Will. The following questions have been raised:
- Can we continue to act for both if they are making the usual change to the Will taking out the partner and leaving it to the children?
- Do we have to inform the other partner we have been instructed?
- Are we obliged to provide any further information to the other party regarding the instructions of their partner?
- If the matter is straight forward with no conflicts can we act for one or both?
If a couple are separating/separated or divorcing/divorced, I would expect the firm to owe the same duty to each of the couple as they would to any other client, which would include confidentiality over the matter upon which they are to be instructed.
As it is unlikely one firm would act for both parties in the divorce, I question whether it would be appropriate for the same firm to be advising both parties on their wills. It may be straightforward, but you will only know that to be the case with the benefit of hindsight.
Once the divorce is finalised, and provided there are no ongoing matters to be resolved, I would have thought the firm could act for either party without needing to inform, or obtain the consent of, the other party. Even then, it might be prudent for separate individuals within the firm to advise the parties (especially if the breakup of the relationship was acrimonious). In the meantime, I feel it would be creating a hostage to fortune for a firm to be advising on/drafting wills for either party, who might also be advised by the lawyers acting in the divorce on actions relating to, say, joint property or nominated assets, which could adversely impact the advice given by the will writer.
I wonder if there is any guidance issued by the SRA/Law Society on this aspect?
Occasionally I have had visits from client couples who tell me that they are splitting up but that everything is agreed between them and they just want me to draw up terms and advise ‘in everyone’s best interests’. This is completely impossible and should not be entertained for a moment; in several instances this ‘optimistic’ initial approach has been followed by a savage and exhausting dispute, leading me to suppose that there must have been a good deal of manipulation and coercion behind the visit to my office.
I don’t see any great problem in advising one of a couple about making a new will, although (assuming you are not also acting in the divorce) you will in any case have to consider to what extent you can or should advise about possible provision for the other (ex) spouse, and the possibility of Inheritance (PFAD) Act claims. To do this you may need to liaise with the client’s divorce lawyers.
Certainly you cannot and should not advise the former spouse that you have been instructed without the current client’s express consent. I don’t think it would ever be possible to act for both (ex) spouses without the risk of conflict or at best serious embarrassment.
Overall I would say it’s something to be done only with caution, although I think it becomes rather easier after the divorce has been concluded.
The SRA Code 2011 is not particularly explicit about the problems associated with joint clients and former joint clients. The Federation of Law Societies of Canada publishes model rules at
and there is an interesting section 3.4-5 on Joint Retainers which suggests that there may have been problems there in the past. Best avoided.
I assume this question refers to the STEP Code for Will Preparation which provides at clause 4 (v) c as follows:
Where instructions are taken jointly from more
than one client in a meeting regarding more
than one will, the will drafter shall advise the
a. they have been asked to act for both
or all of them;
b. no information received in connection
with the matter from one can be treated
as confidential so far as any of the others are
c. if a conflict develops that cannot be
resolved, the will drafter cannot continue
to act for both or all of them and will have
to withdraw completely (and this will include
subsequent changes to either will of which
the other or others would not be aware).
Our practice following the introduction of the Code is to include wording to that effect in our client care letter when preparing mirror wills.
We have decided that if we are instructed by one of the parties in the future to change their will (whether as a result of divorce or otherwise) we can only act for them if they consent to us informing the other party that their will is being changed. If they do not, then we would refuse to act. This scenario hasn’t arisen yet!
MacDonald Oates LLP