Legacies: A solicitor's view
Stuart Adams, a solicitor at Mishcon de Reya LLP, explains why those in his profession are not the “enemies” of legacy giving they have been made out to be, and says that the role played by solicitors should be recognised.
When I read Richard Radcliffe’s guest blog of 29 November 2018 called “Legacies: Do you know your enemies?” I was riled by his declaration that, amongst others, solicitors were an “enemy” of a legacy fundraising campaign.
I read on to learn that Mr Radcliffe’s own “undercover research has shown that around 50% of solicitors are trying to stop their clients leaving legacies to charities”. Upon enquiry it turns out that Mr Radcliffe’s pool of research amounts to “5 firms of solicitors commissioned by a friend”. So that is five firms out of approximately 10,000 in England and Wales or sample size of 0.05%. A small sample size can render a survey unreliable because it leads to higher variability, which may lead to bias. A microscopic sample size of 0.05% is of no statistical value whatsoever. It is therefore a gross misrepresentation to claim, without reference to the sample size or the questions asked, that 50% of solicitors are trying to stop clients leaving legacies to charities.
I have been in practice for in excess of 10 years. I specialise in private client and tax matters and I have authored a leading text on Wills. At a guess I would say I have personally prepared around 1,000 Wills to date.
When taking instructions for a Will, it is the draftsman’s responsibility to take their client through their options in full. Those options include leaving legacies (financial or specific e.g. a painting or a property) to a charity and / or a share of their residuary estate. Every solicitor should, as a matter of best practice, discuss those options with their client so that the client can give informed instructions. The client should also be advised that legacies left to qualifying charities (as defined by the Inheritance Tax Act 1984) are exempt from inheritance tax and, furthermore, if they leave at least 10% of their net estate to charity the rate of inheritance tax applicable to their taxable estate (if any) is reduced to 36% from the standard rate of 40%. That is all fairly simple and does not take very long to cover.
Making the case for supporting a particular charity's cause is the forte of the fundraiser and solicitors should rightly feel that it is not their job to act as fundraisers. Indeed, it would be inappropriate for a solicitor to actively recommend a charitable legacy. As set out above, it is our job to ensure that clients know that it is an option. I have had clients tell me that whilst they did want to leave a charitable legacy, they were not sure which charity or charities to choose. In those circumstances, and at the client’s request, I have helped them to identify the causes that are dear to them. Thereafter, I obtained literature from the Charity Commission website or elsewhere about the activities of several charities which cover the relevant cause(s) and which ranged in size from small local charities to household names.
I have no vested interest in what charity, if any, is ultimately chosen and the client is well aware that I have made a random selection from a much wider pool. Nevertheless, clients have found this approach useful in their deliberations and I have felt entirely comfortable assisting them in this way.
‘Personally held beliefs should not feature’
In my experience it is simply not true that there is a significant lack of willingness amongst solicitors to give testators the option of including a charitable legacy in their Will. I accept that some solicitors do not routinely raise this possibility with their clients and, for whatever reason, some will hold strong views against charitable giving.
I haven’t any data which focuses solely upon solicitors, but the Future Thinking Report 2018 (commissioned by Remember A Charity), which monitors solicitors’ and Will-writers’ approach towards legacy giving and attitudes towards working with charities, found that 16% of advisors never mentioned charitable bequests spontaneously. That alone serves to support my view that the number of solicitors failing to raise the subject is nowhere near 50%! Those solicitors who are reticent to raise the subject should be reminded that they are being instructed to prepare their client’s Will and not their own. Personally held beliefs on the part of the solicitor should not feature.
‘Focus on the positive outcomes’
Labelling those who fail to routinely raise the topic as "enemies" is likely only to lead to further entrenchment. Instead, it would be better to focus on the positive outcomes and recognise the role played by solicitors – however small – in facilitating charitable giving. As solicitors we can take on the responsibility of setting an example to those coming into the profession by acting in accordance with best practice and setting aside personal beliefs which do not align with our duty to act in the best interests of our clients.
No solicitor should want to act otherwise than in accordance with best practice. I advise all solicitors to incorporate charitable giving options into every conversation they have with clients about making a Will regardless of their own views as to charitable giving. Will makers can help ensure that they receive the fullest advice by instructing a solicitor who holds membership of one or more of the following blue riband organisations: the Law Society’s Private Client Section, STEP and Solicitors for the Elderly (SFE).
Stuart Adams is a solicitor at Mishcon de Reya LLP and a committee member of the Law Society’s Private Client Section.