Written by A solicitor who drafts and stores a Will may hold deeply personal information about a client’s assets, family arrangements and future intentions. If that firm later acts for an opposing party in a dispute touching the same asset or estate context, the issue is not only technical. It goes to trust, confidentiality and the appearance of professional independence.
Publication snapshot
- A Will is not just an administrative document; it may reveal assets, relationships, vulnerabilities and future intentions.
- A firm that drafted and stored a Will may still owe duties of confidentiality even if the original drafting retainer has ended.
- The fact that a later matter is technically separate does not automatically remove conflict or confidentiality concerns.
- The key question is whether confidential information from the earlier retainer is material, or appears capable of being material, to the later adverse matter.
- Anyone concerned about this issue should document the chronology, ask the firm to explain its conflict checks, and obtain independent advice before alleging misconduct.
Why conflicts around Wills matter
Conflicts of interest can arise across legal practice, but they are often discussed more readily in litigation, commercial work or family disputes than in Will drafting. That can obscure a practical point: a Will is one of the most personal legal documents a solicitor may prepare.
When a client instructs a solicitor to draft a Will, they may disclose details of assets, liabilities, intended beneficiaries, family tensions, vulnerable relatives, business interests, property arrangements and future plans. Some of that information may be sensitive. Some may be commercially or personally significant. Some may never appear on the face of the Will itself.
The concern arises when the same firm later accepts instructions from another party whose interests are adverse to the former client, particularly where the later dispute touches an asset, relationship or vulnerability that formed part of the earlier estate-planning context.
A personal example
In my own experience, I instructed a firm of solicitors to draft and store my Will. Some time later, the same firm acted for my landlord in a dispute concerning an asset that had been specifically addressed in the Will they had prepared for me.
From my perspective, the effect was devastating. I believed the dispute significantly damaged the value of that asset and left me questioning whether the firm should have accepted the later retainer at all.
The concern was not simply that the firm had once acted for me. The concern was that it had drafted and retained a document containing private information about my estate planning, while later acting for a party whose interests were adverse to mine in a matter connected with an asset addressed in that estate planning.
That does not automatically prove a regulatory breach. It does, however, illustrate why former-client conflicts and confidentiality checks matter. The client may not know what internal screening was done, what information was reviewed, whether any conflict was identified, or why the firm considered it safe to proceed.
Confidentiality, loyalty and conflict
Solicitors owe professional duties that include protecting client confidentiality and avoiding improper conflicts. Those duties do not vanish simply because the main piece of work has been completed. A former client’s confidential information remains protected unless disclosure or use is properly authorised or legally permitted.
In practical terms, the key question is whether the earlier retainer gave the firm confidential information that is, or may be, material to the later matter. A Will-drafting file can contain more than the final signed Will. It may include attendance notes, instructions, drafts, asset discussions, family background and advice about intentions.
The firm holds information from the former client that should not be disclosed or used for another client’s advantage.
The firm’s duties or interests may be impaired because acting for the later client could be adverse to the former client’s protected position.
The difficulty for the former client is evidential. They may suspect that confidential information could have been relevant, but they may not be able to prove what the firm knew, what was accessed internally, or how the later legal strategy was formed.
How a Will-related conflict can arise
-
1
A client gives estate-planning instructions, including information about assets, family circumstances and future intentions.
-
2
The firm drafts and stores the Will, retaining records connected with the client’s instructions.
-
3
The firm later acts for another party in a dispute touching one of those assets or relationships.
-
4
The former client questions whether the firm’s conflict checks and confidentiality safeguards were sufficient.
Does storing the Will change the analysis?
Many firms will say that once a Will is signed, the drafting retainer is complete. Will storage may then be described as a limited administrative service rather than an ongoing advisory relationship.
That may be right in some cases. But it does not answer every question. Even if there is no active retainer, the firm may still hold confidential information from the former client. The fact that the firm stores the Will may also reinforce the client’s perception that the firm remains connected with their estate-planning affairs.
The practical issue is not whether storage automatically creates an ongoing solicitor-client relationship. The more precise question is whether the firm held confidential information capable of being relevant to the later adverse matter, and whether it had adequate systems to prevent misuse or appearance of misuse.
The firm’s likely perspective
A firm facing this type of complaint may argue that the Will-drafting matter was closed, that storage was administrative, and that the later dispute was separate from the earlier retainer. It may also say that no confidential information was used, that the lawyers involved were different, or that conflict checks identified no material risk.
Those arguments should not be dismissed automatically. A former-client conflict is fact-sensitive. Not every prior instruction prevents a firm from acting against a former client in every later dispute.
The concern becomes stronger where the later matter concerns the same asset, the same factual background, the same family or financial vulnerability, or information likely to have been discussed during the earlier Will instructions.
The old Will file is closed, storage is administrative, and the later matter is genuinely unrelated to any confidential estate-planning information.
The later matter concerns an asset, relationship or vulnerability that was discussed during the earlier Will instructions.
Practical steps if this happens to you
Anyone who believes a solicitor has acted despite a former-client conflict should avoid making broad allegations before gathering the documents. The first task is to build a clear, dated record.
Evidence to gather
- The Will retainer letter, terms of business and storage terms.
- Any correspondence showing what assets or family circumstances were discussed.
- The later dispute correspondence, pleadings, notices or letters before action.
- Any evidence that the same team, department or file information may have overlapped.
- A chronology of when the firm acted for each party and what it knew at each stage.
Steps to take
- Write to the firm asking it to explain its conflict check and confidentiality safeguards.
- Ask for confirmation whether the Will file, notes or storage record were accessed.
- Take independent advice before alleging misconduct or loss causation.
- Consider the firm’s complaints process before escalating externally.
- Where serious professional misconduct is suspected, consider the SRA route.
If financial loss is alleged, keep the conflict issue separate from the loss-causation issue. It is one thing to show that a conflict risk existed. It is another to prove that the conflict caused loss, affected litigation strategy or reduced the value of an asset.
Practical conclusion
Will drafting depends on trust. The client provides private information because they believe the solicitor will protect it. If that same firm later appears on the other side of a dispute concerning an asset addressed in the Will, the former client may reasonably question whether their confidential information has been protected.
The answer will always depend on the facts: the retainer, the storage terms, the content of the Will file, the later matter, the firm’s conflict checks and whether confidential information was material. But the wider point is clear. Firms should treat Will files as sensitive long after the drafting work is complete.