The Law Society’s Practice Advice Service provides answers to frequently asked questions
I am acting for three executors under a will. There has been a lot of animosity between them and now one of the executors has instructed another firm to act on his behalf. I understand that the Law Society did issue some guidelines as to costs when the personal representatives are separately represented. Where can I find this?
The guidance was originally published in the Law Society Gazette on 3 September 1986. It is reproduced in the Law Society’s Probate Practitioner’s Handbook, 6th edition, available from the Law Society Bookshop at www.lawsociety.org.uk/bookshop.
Is it correct that if a solicitor-executor witnesses a client’s will, which includes a charging clause, this precludes him or her from later charging for the legal services rendered as solicitor-executor?
No, section 28 of the Trustee Act 2000 provides that a charging clause is not regarded as a gift for the purposes of section 15 of the Wills Act 1837. Therefore, solicitors who witness wills which allow them to charge for their services do not forfeit the benefit of the charging clause. For more information, see the Probate Practitioner’s Handbook, 6th edition.
My client needs to bring a probate claim. A colleague of mine mentioned to me the Chancery Guide. What is its status?
As well as part 57 of the Civil Procedure Rules (CPR), Practice Direction 57, and the Practice Direction on Pre-Action Conduct, practitioners bringing a probate claim should consult the Chancery Guide. The guide does not have the status of a practice direction, but failure to comply with the guide may influence the way in which the court exercises its powers under the CPR, including the making of adverse costs orders. In case of any conflict between the guide and a rule or practice direction, the rule or practice direction prevails. The Chancery Guide is available at tinyurl.com/nmopog6.
I am instructed by one of two lay executors appointed under the will of the deceased. The other executor is at loggerheads with my client, and is acting in person. How should I proceed here?
At the outset, it will be necessary to explain to your executor client the potential pitfalls of this situation. Assuming that both executors are to apply for the grant of probate, they must act together and in agreement. If the executors are in dispute as to how the estate should be administered, it may be that you will find it impossible to make any progress with the administration without resort to the courts.
The Legal Ombudsman scheme rules (available at www.legalombudsman.org.uk) also make it clear that it will accept complaints from “a personal representative of an estate of a person”. This may include the unrepresented executor.
Therefore, you should explain to your executor client that you will need to keep his fellow executor informed of the progress of the administration, and in particular, the costs to be incurred. If your client will not allow you to do this or the executors will not provide joint instructions, then you may wish to consider whether you are able to act at all.
I act for executors who wish to instruct me to draw up a contract to sell the deceased’s house, made conditional upon receipt of a grant of probate. Furthermore, because the potential buyers are being made homeless by their current landlord, the executors are willing to let the buyers occupy the property between exchange and completion. The property is subject to a mortgage charge granted by the deceased. Do I have to inform the lender about the clients’ intentions and seek their consent?
The executors stand in the shoes of the deceased vis-a-vis the lender, and you should read the terms and conditions of the mortgage deed to ascertain and advise on the clients’ obligations to the lender. It is likely that there will be a requirement to notify the lender of the death of the borrower, and not to allow another person to occupy the property without the lender’s consent. The seller’s solicitors’ duties to the chargee are limited to matters of payment and redemption of the charge, in accordance with the Law Society’s Code for Completion by Post.
It is recommended that contracts not be exchanged until the grant of probate has been obtained. The grant provides independent evidence of the status of the sellers as executors validly appointed by a proven will. In addition, it would be better to wait for the grant in case a caveat is lodged. However, if the matter is very urgent and there is a risk that the sale will be lost and the estate suffer loss as a result, consider an application for an urgent grant. Probate registries and the Capital Taxes Office of HM Revenue & Customs will usually be very co-operative about getting an urgent grant or a grant ad colligenda bona to sell and preserve assets.
Is it a requirement that wills are stored in a fireproof storage area?
There is no formal requirement that wills should be stored in a fireproof storage area. However, firms accredited under the Wills and Inheritance Quality Scheme (WIQS) have to comply with the Wills and Inheritance Protocol, which provides that firms will address the matter of “appropriate storage arrangements to ensure the physical security of wills and will files”.
It is suggested that you check with your firm’s professional indemnity insurer in case it has any specific requirements for will storage, and if so, ensure you comply with them. Firms may also wish to consider the safe storage of wills as part of their overall business continuity planning.
This column is compiled by the Law Society’s Practice Advice Service (0870 606 2522). Comments relating to the questions should be sent to Mrs Anjali Mouelhi, solicitor technical adviser, The Law Society, 113 Chancery Lane, London WC2A 1PL.
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.