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Ethics in Will Writing: Navigating Conflicts of Interest and Professional Conduct

· 21 min

Executive Summary

Ethical failures in will writing remain a persistent source of regulatory action, professional liability, and reputational harm. The SRA's December 2024 thematic review of probate and estate administration found that only 12 of 23 firms acting as executors maintained adequate conflict-of-interest controls.1 Legal Ombudsman data confirms wills and probate complaints rose 28% in 2024/25, reaching an 81% evidence-of-poor-service rate by Q1 2025/26.23 The LSB's draft professional ethics policy statement, consulted upon in early 2025, proposes five outcomes for regulators that would tighten ethical education, monitoring, and enforcement requirements.4 The SRA's planned continuing competence consultation signals a parallel regulatory trajectory. Meanwhile, the Law Commission's May 2025 Modernising Wills report proposes reforms to undue influence rules and the witness-beneficiary framework that would materially alter the ethical landscape.5 This article provides a comprehensive taxonomy of ethical risks in will writing, maps regulatory obligations, analyses enforcement trends, and presents an operational framework for compliance.

1. Introduction: The Ethical Imperative in Will Writing

Will writing occupies a distinctive position within professional legal practice. It sits at the intersection of a solicitor's most critical ethical obligations -- confidentiality, loyalty, independence, and best-interest duties -- while simultaneously creating relationships and expectations that persist long after the retainer concludes.6 The testator may not revisit the will for decades. The solicitor's ethical decisions at the drafting stage therefore carry consequences that extend far beyond the immediate instruction.

The evidence base for treating will writing as a high-risk ethical environment has strengthened materially. The SRA's December 2024 thematic review of probate and estate administration examined 25 firms and found systemic deficiencies in ethical controls, particularly in conflict-of-interest management.1 Legal Ombudsman data for 2024/25 shows wills and probate complaints rose 28% year-on-year to 1,128 accepted complaints, with a 76% evidence-of-poor-service rate for the full year and an 81% rate by Q1 2025/26 -- the highest of any practice area.23 At the oversight level, the LSB's professional ethics research identified three structural drivers of poor ethical conduct across the legal profession: insufficient understanding of professional ethical duties, a disproportionate focus on client best-interest obligations at the expense of wider public-interest duties, and inadequate empowerment to maintain ethical standards under commercial pressure.4

Against this convergence of empirical evidence, regulatory scrutiny, and prospective legislative reform, treating ethics in will writing as a discrete compliance checklist rather than a dynamic risk management discipline is no longer tenable. Practitioners who fail to develop documented, auditable ethical frameworks for will writing face escalating regulatory exposure.

2. The Regulatory Framework: Mapping Ethical Obligations for Will Drafters

2.1 The SRA Code of Conduct: Core Provisions

The SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs, in its current form effective 11 April 2025, establishes the foundational ethical framework applicable to will writing.7 Several provisions carry particular significance for will drafters.

Paragraph 6.1 imposes an absolute prohibition on acting where an own interest conflict exists or where there is a significant risk of such a conflict arising. This prohibition admits no exceptions: client consent cannot cure an own interest conflict, and no waiver mechanism exists.8 The absolute character of paragraph 6.1 distinguishes it fundamentally from the conditional framework under paragraph 6.2, which addresses conflicts between the interests of two or more current clients. Paragraph 6.2 permits continued representation where there is a "substantially common interest" or where clients are "competing for the same objective," provided that all affected clients have given informed written consent and effective safeguards protect confidential information.8

The SRA Principles reinforce these obligations. Principle 2 (upholding public trust and confidence in the solicitors' profession), Principle 5 (acting with integrity), and Principle 7 (acting in the best interests of each client) collectively establish the ethical architecture within which will writing must operate.7 Paragraph 1.4, prohibiting the abuse of position by taking unfair advantage of clients, has particular resonance where testators may be elderly, vulnerable, or unfamiliar with the will-making process.

2.2 Will-Specific SRA Guidance

Beyond the general Code, the SRA's guidance on the drafting and preparation of wills imposes obligations specific to will writing that extend the general conflicts framework.9 Three requirements merit close attention.

First, solicitors must not exploit a client's lack of knowledge by leading them to believe that appointing a solicitor as an executor is essential or the default position. The SRA frames this as a Principle 7 obligation: advice on executor appointment must serve the client's best interests, not the solicitor's commercial interest in future estate administration fees.9

Second, where a client wishes to make a gift of significant value to the drafting solicitor, the solicitor's family, or an employee of the business, the solicitor must satisfy themselves that the client has first taken independent legal advice. If the client declines to seek independent advice, paragraph 6.1 requires the solicitor to cease acting.9 The Law Society's practice note on preparing a will when a client is leaving a gift for the solicitor, updated 7 August 2025, provides further operational detail on compliance with this obligation.10

Third, the SRA identifies four categories of quality failure in wills -- inadequacy, legality, inconsistency, and insufficient detail -- linking ethical competence obligations under paragraph 3.3 to substantive drafting quality.9

2.3 The Wills Act 1837: Statutory Ethical Safeguards

The statutory framework provides additional ethical guardrails. Section 15 of the Wills Act 1837 renders void any gift to a person who witnesses the will, or to the spouse or civil partner of a witness.11 This provision operates as an automatic safeguard against one category of own-interest conflict, but its scope is limited. As the Law Commission's May 2025 report observes, section 15 does not currently extend to cohabitants -- a gap the draft Wills Bill proposes to close.12

3. Taxonomy of Ethical Risks in Will Writing

Ethical risks in will writing fall into four interconnected categories. Each engages distinct SRA Code provisions and demands different management protocols.

3.1 Category One: Own-Interest Conflicts

Own-interest conflicts represent the most acute ethical risk in will writing because the paragraph 6.1 prohibition is absolute and breach carries the most severe regulatory consequences.8

Solicitor as executor. The most common own-interest conflict scenario arises when a solicitor advises on executor appointment while standing to benefit from appointment as executor through future administration fees. The SRA's December 2024 thematic review found this risk was widely recognised in principle but inadequately controlled in practice: only 12 of 23 firms acting as executors had additional controls beyond general awareness.1 The review identified that where a firm or solicitor acts as both executor and administrator, the absence of an external client creates reduced accountability and oversight of decision-making and costs.13 Firms with adequate controls ensured that the executor and the administrator were different individuals within the firm, and treated residuary beneficiaries as clients, providing client care letters, costs information, and regular updates.1

Gifts to the drafting solicitor. Where a testator proposes a gift of significant value to the drafting solicitor, the ethical obligation is clear but the practical management is nuanced. The SRA guidance requires independent legal advice as a precondition; absent the client's agreement to obtain it, the solicitor must cease acting.9 The enforcement record demonstrates the consequences of failure. Laceys Solicitors LLP received a regulatory settlement including a fine of GBP 4,250 after admitting that the firm acted for executors in circumstances where an own interest conflict had arisen or was at significant risk of arising, and failed to advise the client to obtain independent legal advice despite the COLP recommending this course.14

Rectification and own-interest conflicts. A further own-interest scenario arises when a solicitor has given incorrect advice during will preparation and the client seeks rectification. The SRA's guidance on putting matters right and own interest conflicts confirms that the tension between the solicitor's interest in minimising personal liability and the client's interest in obtaining the best outcome creates an own interest conflict that may require the solicitor to cease acting.15

3.2 Category Two: Client-to-Client Conflicts

Client-to-client conflicts in will writing are more common than own-interest conflicts but are frequently managed through informal rather than documented processes, creating significant regulatory exposure.

Joint clients: spouses and cohabitants. The most prevalent scenario involves acting for both spouses or cohabitants in preparing mirror or mutual wills. The paragraph 6.2 framework permits this where a "substantially common interest" exists -- defined by the SRA as requiring "a clear common purpose and strong consensus on how it is to be achieved."8 In practice, the substantially common interest test creates a nuanced assessment. Spouses with broadly aligned testamentary intentions and no significant divergence in asset ownership typically satisfy the threshold, provided informed written consent is obtained. However, the common interest may fracture where second marriages involve children from previous relationships, where asset ownership is substantially unequal, or where one party's testamentary wishes are influenced by family obligations the other does not share.

Intergenerational instructions. An adult child bringing an elderly parent to a solicitor to "update their will" presents acute conflict risks. The solicitor must determine whether the instruction genuinely originates from the testator, whether undue influence may be operative, and whether the interests of the accompanying family member align with or diverge from the testator's freely formed intentions.7 This scenario engages both the conflicts framework and the duty under paragraph 3.5 to account for clients' personal circumstances, including potential vulnerability.

Family group instructions. Where a solicitor is instructed by multiple family members -- for example, parents and adult children wishing to coordinate estate planning -- the conflicts analysis becomes multi-dimensional. Each client relationship must be independently assessed, and the substantially common interest test applied to each pairing. Confidential information obtained from one family member cannot be shared with others without explicit consent, creating practical information management challenges that require documented protocols and, in many cases, information barriers within the practice.

3.3 Category Three: Confidentiality and Subsequent Representation

Will storage creates enduring confidentiality obligations that may not become operative for years or decades after the original retainer. A solicitor storing a testator's will holds confidential information about the testator's asset distribution intentions. If the solicitor subsequently receives instructions to act for a party whose interests are adverse to the testator -- for example, a family member contesting the will or seeking to influence its amendment -- a conflict arises between the duty of confidentiality to the former client and the duty to act in the best interests of the new client.16

The SRA's conflicts guidance acknowledges this category of risk but does not prescribe detailed operational protocols for managing it. Enforcement cases have demonstrated the consequences: solicitors acting adversely to former testator-clients without adequate information barriers face disciplinary proceedings.8 Firms maintaining substantial will storage archives carry a proportionately larger ethical exposure, requiring robust systems for identifying potential conflicts at the point of new client intake.

3.4 Category Four: Vulnerability and Undue Influence

The duty to identify and respond to potential undue influence represents a public-interest obligation that may conflict with the testator's expressed wishes. The LSB's professional ethics research identified a tendency among practitioners to prioritise the client best-interest duty over wider public-interest obligations, including the duty to prevent fraud and protect vulnerable testators.4 In will writing, this tension is acute: a testator may express a clear wish to benefit a particular individual in circumstances where the surrounding evidence suggests undue influence, and the solicitor must navigate between respecting client autonomy and fulfilling their public-interest obligations.

Current law under Banks v Goodfellow (1870) establishes the testamentary capacity framework, while the Mental Capacity Act 2005 provides the statutory capacity test for other decision-making contexts. The Law Commission's recommendation to replace Banks v Goodfellow with the MCA 2005 test has not been enacted as of January 2026, meaning practitioners must continue to apply the common law standard while preparing for potential statutory reform.5 The practical consequence is that will drafters operate within a dual-standard environment: the common law test governs current practice, while the prospective statutory test may alter the assessment methodology within the medium term.

4. The Regulatory Trajectory: Tightening the Ethical Framework

4.1 The LSB Professional Ethics Project

The LSB's draft professional ethics policy statement, consulted upon in early 2025, represents a potentially significant regulatory development in legal professional ethics.4 Based on what the LSB described as "extensive research, engagement and evidence-gathering," the draft policy statement proposes five outcomes for regulators:

  • Outcome 1 (Education and training): Lawyers must have the right knowledge and skills on professional ethical duties.
  • Outcome 2 (Regulatory frameworks): Rules and guidance must place ethical duties at the heart of expected behaviour.
  • Outcome 3 (Support and empowerment): Regulators must establish clear reporting expectations and accountability for ethical conduct.
  • Outcome 4 (Monitoring and enforcement): Proper supervision and action to address non-compliance.
  • Outcome 5 (Evaluation): Regular assessment of impact.

The consultation closed on 29 May 2025, and the LSB's November 2025 draft business plan indicates the final statement is expected to be published in the 2025/26 period.17 Once finalised, regulators would have 18 months from publication to demonstrate compliance with Outcomes 1 through 3. The direction of regulatory travel is clear: the period of outcome-based self-regulation of ethical conduct is giving way to more prescriptive requirements for ethical education, monitoring, and enforcement.

4.2 The SRA's Response: Continuing Competence and Ethics

The SRA's Annual Assessment of Continuing Competence 2025, published in July 2025, provides further evidence of the regulatory trajectory. The assessment found that many solicitors focus their learning and development on maintaining technical legal knowledge rather than other aspects of practice, and do not regularly undertake learning and development to understand, develop, and uphold their ethical and professional duties.18

The SRA's response was twofold. First, in autumn 2024, the SRA strengthened the practising certificate renewal declaration to require explicit confirmation of being up to date with all legal, ethical, and regulatory obligations. Sixteen solicitors from the 2024 renewal cycle did not confirm compliance; the SRA imposed practice conditions on 10 of them.19 Second, the SRA announced it will consult on strengthened continuing competence requirements, with a particular focus on reflection and maintaining professional ethics obligations.18

For will writing practitioners specifically, the December 2024 thematic review's findings on competence gaps compound the ethics deficit. Only 15 of 25 reviewed firms had written competence policies, and 6 of 10 fee earners were unaware of their continuing competence obligations.1 Only 9 of 30 reviewed files showed evidence of supervision.13 The convergence of practice-area-specific competence deficiencies with profession-wide ethical education gaps creates a compounding risk that regulatory intervention is designed to address.

4.3 The Law Commission's Draft Wills Bill: Ethical Implications

The Law Commission's May 2025 Modernising Wills report proposes three reforms with direct ethical implications for will drafters, though practitioners must note that no legislative timetable has been confirmed as of January 2026. The Government's response acknowledged the reforms "deserve detailed consideration," and by late 2025 the Law Society was publicly pressing for progress, stating there had been "no movement" six months after publication.520

Undue influence reform. The draft Bill would enable courts to infer undue influence where reasonable grounds exist, shifting the evidential burden to the person seeking to uphold the will.21 Even before enactment, this proposal has practical implications for the standard of care in will drafting. If the reform becomes law, inadequate documentation of the drafter's assessment of potential undue influence will become a significantly greater liability exposure. Solicitors who establish robust file documentation practices now -- recording their assessment of the testator's independence, the circumstances of the instruction, and any concerning indicators -- will be better positioned regardless of the legislative outcome.

Witness-beneficiary extension. The draft Bill extends the section 15 witness-beneficiary rule to cohabitants of witnesses, not just spouses and civil partners.12 This proposal reflects the demographic reality that cohabitation is now the fastest-growing family structure in England and Wales. If enacted, attestation procedures would require enhanced due diligence to identify cohabiting relationships between witnesses and beneficiaries -- a factual inquiry that is inherently more complex than verifying marital or civil partnership status.

Electronic wills. The draft Bill's "reliable system" and "remote presence" provisions for electronic wills would introduce new ethical dimensions to will execution. Remote execution creates heightened risks of undue influence because the solicitor cannot directly observe the testator's physical environment, and safeguard protocols for ensuring the testator is acting freely in a remote execution setting remain undeveloped.5 Practices considering early adoption of technology-assisted will execution processes should develop ethical safeguard protocols in anticipation, including verification procedures for confirming the testator's identity and independence during remote interactions.

5. Toward an Operational Ethical Framework for Will Writing Practices

The evidence from the SRA thematic review, enforcement actions, and the complaints trajectory demonstrates that awareness of ethical obligations, while necessary, is insufficient. The SRA review found adequate substantive work quality in many instances but inadequate documentation of ethical decision-making.1 An operational framework must therefore translate awareness into documented, auditable processes.

5.1 Conflict Identification at Instruction Stage

Effective ethical management begins at client intake. Conflict-checking protocols for will writing instructions should extend beyond standard database searches to include a structured assessment of own-interest risks (executor appointment potential, existing client relationships that may generate gifts), client-to-client risks (joint instructions, family group dynamics, intergenerational instruction scenarios), and confidentiality risks (existing will storage obligations, prior representation of parties with potentially adverse interests).89

5.2 Documentation Standards

Documentation is the recurring deficit identified in regulatory findings. The SRA thematic review noted that ethical decision-making was occurring in practice but was not being recorded in a manner that would demonstrate compliance upon regulatory inquiry.13 Key documentation requirements include contemporaneous file notes recording the conflict assessment at instruction stage, informed consent records for joint client representation under paragraph 6.2, records of independent legal advice referrals where gifts to the solicitor are proposed, and documented capacity and undue influence assessments recording the solicitor's observations and reasoning.

5.3 Training and Competence

The SRA's continuing competence findings indicate that ethics-specific training must be distinguished from general technical legal education.18 Will writing teams require training that addresses the practice-area-specific ethical scenarios outlined in the taxonomy above, calibrated to the firm's client profile and service model. The SRA's planned consultation on strengthened competence requirements further reinforces the case for proactive investment in ethics-focused CPD.19

5.4 Audit and Self-Assessment

Benchmarking against the SRA thematic review's criteria provides a practical self-assessment framework. Firms should evaluate whether executor appointment advice serves client interests rather than commercial interests, whether conflict controls extend beyond general awareness to documented procedures, whether supervision is evidenced on file, and whether competence policies specifically address ethical obligations alongside technical knowledge.1 Periodic internal audits of will files against these criteria -- conducted at least annually -- enable practices to identify and remediate gaps before they attract regulatory scrutiny.

Conclusion

Ethics in will writing is not a static compliance exercise. The convergence of the SRA's December 2024 thematic review findings, rising Legal Ombudsman complaints, the LSB's draft professional ethics policy statement, the SRA's planned continuing competence consultation, and the Law Commission's prospective reforms collectively signal a regulatory environment that is moving toward greater prescription, monitoring, and enforcement of ethical obligations.418

The taxonomy of ethical risks in will writing -- own-interest conflicts, client-to-client conflicts, confidentiality obligations, and vulnerability and undue influence duties -- demands a systematic rather than ad hoc approach to compliance. The distinction between the absolute own-interest conflict prohibition under paragraph 6.1 and the conditional client-to-client framework under paragraph 6.2 remains a critical differentiator that practitioners must apply with precision. Conflating these two categories of obligation -- treating a conditional framework as though it were absolute, or an absolute prohibition as though it admitted exceptions -- generates risk in both directions.

Practices that invest in documented ethical frameworks, structured conflict-identification protocols, and ethics-specific training will be best positioned to navigate the current regulatory climate and the reforms anticipated under the draft Wills Bill. The regulatory direction is clear; the operational imperative is to build ethical infrastructure that can withstand scrutiny, not merely satisfy it at the point of inquiry.


CPD Declaration

Estimated Reading Time: 18 minutes Technical Level: Advanced Practice Areas: Professional Ethics, Private Client, Wills and Probate, Regulatory Compliance

Learning Objectives

Upon completing this article, practitioners will be able to:

  1. Distinguish between the absolute own-interest conflict prohibition under SRA Code paragraph 6.1 and the conditional client-to-client conflict framework under paragraph 6.2 as applied to will writing scenarios
  2. Classify ethical risks in will writing across four categories -- own-interest conflicts, client-to-client conflicts, confidentiality obligations, and vulnerability and undue influence -- and identify the SRA Code provisions applicable to each
  3. Evaluate the implications of the SRA's December 2024 thematic review findings for conflict-of-interest controls in practices that act as executors or administer estates
  4. Analyse the ethical implications of the Law Commission's draft Wills Bill proposals, including the undue influence inference, the witness-beneficiary extension, and electronic wills safeguards

SRA Competency Mapping

  • Ethics, professionalism and judgement (A): Identifying and resolving ethical dilemmas; applying the SRA Code of Conduct and Principles to practice-specific scenarios
  • Technical legal practice (B): Application of regulatory frameworks and statutory provisions to will writing, including the Wills Act 1837 and SRA guidance on drafting and preparation of wills
  • Working with other people (C): Managing conflicts of interest in joint client and family group representation scenarios

Reflective Questions

  1. How would you assess the adequacy of conflict-of-interest controls in your own practice against the criteria identified in the SRA's December 2024 thematic review, particularly the separation of executor and administrator roles and the treatment of residuary beneficiaries as clients?
  2. What additional documentation protocols would you implement to prepare for the evidential burden shift proposed by the Law Commission's undue influence reform, and how might these apply regardless of whether the reform is enacted?
  3. In what circumstances would you decline a joint retainer from spouses or cohabitants seeking mirror wills, and how would you communicate this decision in a manner consistent with the duty to act in each client's best interests?

Professional Disclaimer

The information presented reflects the regulatory and legislative position as of 2026-01-28. Regulations, tax rules, and professional guidance are subject to change. Readers should independently verify all information before acting and seek advice from appropriately qualified solicitors, financial advisors, or other professionals for their specific circumstances.

Neither WUHLD nor the author accepts liability for any actions taken or decisions made based on the content of this article. Professional readers are reminded of their own regulatory obligations and duty of care to their clients.



Footnotes

Footnotes

  1. SRA Thematic Review of Probate and Estate Administration (13 December 2024). https://www.sra.org.uk/sra/research-publications/probate-administration-thematic-review/ 2 3 4 5 6 7

  2. Legal Ombudsman 2024/25 Annual Complaints Data and Insight. https://www.legalombudsman.org.uk/information-centre/data-centre/complaints-data/legal-ombudsman-202425-annual-complaints-data-and-insight/ 2

  3. Legal Ombudsman 2025/26 Q1 Complaints Data. https://www.legalombudsman.org.uk/information-centre/data-centre/complaints-data/202526-quarter-1-complaints-data/ 2

  4. LSB Professional Ethics Programme (2025). https://legalservicesboard.org.uk/our-work/ongoing-work/professional-ethics-rule-of-law-and-regulation/about-this-programme-of-work 2 3 4 5

  5. Law Commission, Modernising Wills -- Final Report HC 861 (16 May 2025). https://lawcom.gov.uk/project/wills/ 2 3 4

  6. SRA Principles (effective 11 April 2025). https://www.sra.org.uk/solicitors/standards-regulations/principles/

  7. SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs (effective 11 April 2025). https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ 2 3

  8. SRA Guidance: Conflicts of Interest. https://www.sra.org.uk/solicitors/guidance/conflicts-interest/ 2 3 4 5 6

  9. SRA Guidance: Drafting and Preparation of Wills. https://www.sra.org.uk/solicitors/guidance/drafting-preparation-wills/ 2 3 4 5 6

  10. Law Society Practice Note: Preparing a Will When Your Client Is Leaving a Gift for You, Your Family or Colleagues (updated 7 August 2025). https://www.lawsociety.org.uk/en/topics/private-client/preparing-a-will-when-your-client-is-leaving-a-gift-for-you-your-family-or-colleagues

  11. Wills Act 1837, section 15. https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/15

  12. Law Commission, Modernising Wills (May 2025) -- Witness-Beneficiary Rule Extension. https://lawcom.gov.uk/project/wills/ 2

  13. SRA Press Release: Thematic Reviews of Professional Obligations and Probate (13 December 2024). https://www.sra.org.uk/sra/news/press/2024-press-releases/thematic-reviews-professional-obligations-probate/ 2 3

  14. SRA Regulatory Decision: Laceys Solicitors LLP. https://www.sra.org.uk/consumers/solicitor-check/592116/

  15. SRA Guidance: Putting Matters Right and Own Interest Conflicts. https://www.sra.org.uk/solicitors/guidance/putting-matters-right-own-interest-conflicts/

  16. Law Society Practice Note: Conflict of Interests. https://www.lawsociety.org.uk/en/topics/client-care/conflict-of-interests

  17. Legal Futures: LSB Tells Regulators to Improve Lawyers' Ethical Standards (2025). https://www.legalfutures.co.uk/latest-news/lsb-tells-regulators-to-improve-lawyers-ethical-standards

  18. SRA Annual Assessment of Continuing Competence 2025 (July 2025). https://www.sra.org.uk/sra/research-publications/annual-assessment-continuing-competence-2025/ 2 3 4

  19. SRA Annual Assessment of Continuing Competence 2025 -- Enforcement Data. https://www.sra.org.uk/sra/research-publications/annual-assessment-continuing-competence-2025/ 2

  20. Law Society Press Release: No Will to Act on Wills Reform (2025). https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/no-will-to-act-on-wills-reform

  21. Law Commission, Modernising Wills (May 2025) -- Undue Influence Reform. https://lawcom.gov.uk/project/wills/