Melinda Giles looks at how different couple dynamics can risk creating conflict of interest, and how you can navigate these potentially difficult conversations

As private client practitioners, we are not like litigators, divorce lawyers, or even conveyancers; in the world of private client work, we have our client and we work for them, advising them and carrying out their instructions, in their best interests without someone on the other side.

But are we at risk of slipping into the role of a family mediator trying to make a will that suits everyone, without truly considering the individual and separate interests, rights and advice that each party may need?

We have all sat across the meeting table of a married couple, still in the honeymoon stage of their second marriage, having put the rigour of their past divorce behind them and playing happy families in their new shared home. It can be difficult at this time to point out the possibilities of an even more complex future.

I was recently recommended to a woman in her 50s to make a will. Financially independent and of some considerable wealth, she had married again following a divorce. She had one teenage child with additional needs. Her and her new (substantially less wealthy) husband had married at short notice, following her diagnosis of a serious illness, without thinking to make wills, or a pre-nuptial agreement.

Her independent financial adviser was naturally both happy for her, and appalled that she had not protected herself legally.

She made an appointment for her and her husband to see me to make their wills. Fortunately, her health had improved and as a couple they were living happily. But this did not change the facts. Could I genuinely act in her best interests if I met with them as a couple? The advice that they needed as individuals was just too far apart.

I called her and explained that the first appointment would be with her on her own, and that this was because as a solicitor, I was governed by the rules that ensure I act in the best interests of a client and at this stage I needed to establish what was in her best interests, before potentially then meeting with them as a couple. I explained to her that if I firstly saw them as a couple, and then (as I expected) a conflict of interest arose, I would then have to decline to act for them both.

The Solicitors Regulatory Authority (SRA) state in their code of conduct:

“You do not act in relation to a matter or particular aspect of it if you have a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it,”

The same applies to parts of a matter; particular tasks or aspects of it.

The SRA define a conflict of interest as “a situation where your separate duties to act in the best interests of two or more clients in the same or a related matter conflict.”

This particular case progressed well. My client took my call fully onboard. We met, and I set things out for her extremely clearly (and bluntly). They were already married, with no pre-nuptial, her options were:

  • They could consider a post-nuptial agreement. This was something she had not thought of. I referred her to a family lawyer.
  • Her teenager with additional needs may need looking after in the event of her death.
  • Her husband may have a competing claim for dependency in the event of her death.
  • She had enough wealth to consider setting up a trust for her teenager outside of her will, outside of the potential for a claim by her husband in the event of marriage breakdown or death.
  • She did have the spousal relief to use with careful planning.

And more besides.

The important facts to remember when advising couples in making their wills together is that each person can change their will before the death of the other, or after. There is nothing legally binding on a spouse to maintain the same provision, unless they make joint or mutual wills and it would be very rare that I would advise this.

Life twists and turns. We must be brave enough to point out to our clients that it is far better to face the possibilities of less happy times from a position of comfort and open conversation, than at a time when trust is broken, or grief is overwhelming. They will appreciate it, and we will be better lawyers for it.