You are not your client’s conscience
Meddling in testamentary intention is a recipe for disaster
One of the reasons solicitors can get tripped up by ethical issues is that they are almost always shades of grey, and often arise from a desire to do the right thing. Nowhere is this more likely to occur than in the vexed issue of raising charitable options with a client who is making a will.
On the face of it, the idea that a solicitor might make a client aware of those options (in a strictly neutral sense, of course) seems simply like doing some good in the world. In addition, from time to time research pops up which shows that when solicitors raise the issue with clients, those clients are more likely to leave a charitable bequest.
While that may sound like a wonderful outcome, it is actually quite concerning; clients who would otherwise leave their money in a different way make a donation to a charity after their solicitor raises the issue. It at the very least allows the apprehension that the solicitor has altered or played a part in the client’s testamentary intention.
The role of a solicitor is to facilitate the client’s intention, not to be involved in its creation. If a client indicates they wish to leave a charitable bequest, the solicitor can of course draft a will accordingly; if a client is deciding on how to distribute their estate when they have gone, a solicitor volunteering the idea of a charitable bequest takes the issue into a murkier place. The solicitor moves from working out how to give effect to the client’s instructions, and to affecting what those instructions will be.
In any disputed estate, it is likely that the true intent of the testator will come under scrutiny. Disappointed potential beneficiaries — or those who have received a smaller slice of the pie than they expected — are bound to examine any charitable bequest. If it transpires that the bequest was created only after a solicitor suggested it, that solicitor is probably going to spend some time in the witness box, and the estate will likely be diminished by a legal battle.
Solicitors must keep front of mind the role they hold, and the gravitas which clients will append to their words. It is an occupational hazard in the legal profession that clients tend to regard everything a solicitor says as legal advice, and blurring the distinction between an available course of conduct and an advisable one can only lead to trouble.
As officers of the court, solicitors have a fundamental duty to avoid any compromise to their integrity and professional independence.[1]That includes ensuring that the decisions clients make are their own — informed by legal advice, certainly, but not made by the solicitor. That is doubly important with the drafting of a will, when a client trusts a solicitor to ensure their wishes are honoured after they pass. If a solicitor involves themselves in the testamentary intentions of their client, they imperil their integrity; it is a line which should not be crossed.
Most people would of course see an increase in funds to deserving charities as a good thing, but it is often the case that good intentions can lead to ethical dilemmas. It is not for solicitors to influence testamentary intention, nor proselytise for charity; those matters remain a question for the conscience of the client.
[1] Australian Solicitors Conduct Rules 4.1.4
