The Law Society of South Australia has recently released a system for recording the location of wills held by law practices. It’s a great idea and I commend the Succession Law committee for establishing it.

Law firms often hold the originals of client’s wills and people can easily forget or lose track of the firm where their wills have been kept. That can have a significant impact when someone has died, with the deceased person’s estate potentially not going as intended, and because it can cause additional cost and delay. The register will help to reduce the risk of wills going missing.

Unfortunately I do also have some reservations about the current implementation of the wills register.

Consent
First and foremost, there is the issue that previous clients may have their details uploaded to the register without their consent.

The Law Society is strongly encouraging all law practices to send in bulk details of all the wills that they already hold. Although the Law Society has warned that some practices have an obligation to inform clients of the disclosure under the Privacy Act, the larger issue of the client’s consent has not been addressed in the society’s publications to practitioners.

Copies of the will aren’t uploaded, but the very existence of a will can be an important matter and one that clients expect to be kept in confidence. I am also certain that, if offered the choice, some clients would not want to have their details included in the register.

The starting position with all lawyers is that information confidential to clients cannot be disclosed without the client’s express or implied consent. (There are exceptions, but it is difficult to see how they could apply here.)

One well established case of implied consent is that the will needs to be disclosed to the client’s executor after the client’s death. I don’t think it follows from that scenario that a lawyer is also authorised to disclose the existence of a will to the Law Society in (distant) anticipation of the death. So it seems to me that the uploading of will information without the client’s consent is inconsistent with the professional duties of a lawyer.

How the register can currently be used
Access to the register is limited to legal practitioners or their employees, and it is only meant to be used by them for the purpose of determining the location of a will for the maker of that will, or to advise a person who the lawyer suspects could be the executor of that will. By using the register, lawyers are giving an undertaking that they will not use the information for any other purpose.

Obviously there is always the risk of abuse. The concern here being that someone may use the register to check up on whether another person has made or changed their will.

I haven’t had any occasion to search the register yet, but I can see that it is searchable by a person’s last name without the need to include a first name. Depending upon how the search results are displayed, it is quite possible that a lawyer could search for a will of a client and end up with a list of wills made by that person’s family. This may cause professional ethics issues even though the information is unintentionally obtained.

Limitations
The register could be really helpful where someone has passed away and you know that there is a will and that the client might be the executor. But what if you don’t think there was a will but can’t say for sure? Or you know that there was a will but also that the executors are already dead? Or that there was a will but that another person who you know would be the executor is denying its existence? In its current form, it is not permissible to use the register to look for the will for those reasons.

There also doesn’t seem to be any simple process for an individual to have their details removed or (without using a lawyer) to find out if their details have been included in the register. Presumably the Law Society would be able to handle that without too much fuss however.

Future uses of the information
Lawyers uploading will information grant the society a perpetual right to use that information “for the purposes of maintaining the Register, providing access to the Register to other legal practitioners, and our related and internal purposes”. The society also has the right to change the terms on which it provides the service and even transfer the service to someone else.

Accordingly, it’s possible that in the future the society:-

  • Could allow legal practitioners to use the information for wider purposes than simply to locate a will,
  • Could give the information to another service provider, who might then charge a fee for the service, and
  • Could use the information for its own purposes (depending on how ‘related and internal purposes’ is interpreted).

Privacy conscious clients may well wish to avoid using the register.

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