If you drafted it, don’t defend it

If you drafted it, do not defend it.

This is one for the lawyers, my colleagues, mate;

You’ve done great work planning that estate;

Drafted an ironclad will, and filed for probate;

But now it’s time to stop before you make a mistake.

A mistake that’s worse than introducing your educational video in rhyme and verse.

I’m Nicholas Rose and this is mandatory viewing for executors and the lawyer’s acting for them.

You cannot defend an estate for your client if you also drafted the will.

This is all down to small change in the Solicitors Conduct Rules to rule 27.2 back in April 2022.

The word’s “ may act or continue to act unless doing so would prejudice the administration of justice.”

Became: “must not continue to act if doing so would prejudice the administration of justice.”

Seems benign, but in the world of will drafting and contested estate even an appropriate information barrier won’t be enough. You must. Not. Act.

This change was barely a blip on most lawyers’ radars and has caused no end of enjoyment for my plaintiff solicitor colleagues when they or the barrister politely explain the conflict of interest, and breach of Conduct Rules to the defendant’s solicitor and ask them to take the stand in court.

And it happens a lot.

As a solicitor who works primarily defending estate claims, it is my experience that a referral from a drafting solicitor acting in probate results in:

• streamlining the defence ,
• reducing costs to the estate,
• less stress for the probate lawyer , and
• less friction with and stress for the client.

It is not a sign of inability, or lack of expertise.

On the contrary, you will be made to look supremely incapable when being cross examined if it makes it to hearing, and risk referral for disciplinary action for your troubles.

Good solicitors know when to delegate and refer. The best know to refer to specialists.

If you receive a summons or statement of claim and your firm or solicitor drafted the will, call Turnbull Hill Lawyers and ask to speak to me or another member of the contested estates team.