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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10189
Experience:  Barrister 17 years experience
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Can Solicitors acting as Executors release Attendance Notes

Customer Question

Can Solicitors acting as Executors release Attendance Notes to a beneficiary of a Will
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. There is nothing in law to prevent a solicitor executor from releasing information such as attendance notes to a beneficiary of a will. A solicitor executor is allowed to share information in relation to the will with a beneficiary where the solicitor executor judges this to be in the best interests of the estate. In law, there is a discretion given to the executor as to how to organise the administering of the estate. This discretion is not readily reviewable by the courts as the decisions on this point have held that there is a wide discretion given to the executor. There would have to be a conflict of interest between the interests of the estate and the beneficiary with whom the information is shared for a court to interfere in the exercise of the executor's discretion in releasing information.
Customer: replied 1 year ago.
your answer seems contrary to the SRA Code off Conduct 4.01 confidentiality which always overrides the duty to discloseRegards William
Expert:  Buachaill replied 1 year ago.
2 The reason the answer is contrary to the SRA CODE OF Conduct is that the solicitor is not purely acting professionally as a solicitor. The solicitor is acting as executor, which is not the same as acting professionally for a client. Where a solicitor is acting as executory he acts in the capacity as trustee to the estate and is governed by the rules governing trustees, which are different to acting professionally for a client. This is why there is the divergence. When acting as an executor, the solicitor's obligations are the same as any trustee which is to act in the best interests of the trust and of the beneficiaries. Accordingly, if an executor (solicitor) takes the view that disclosure to a beneficiary is in the best interests of the trust or the beneficiaries the solicitor may do so. There is no obligation of confidentiality attaching to acting as executor as attach
Expert:  Buachaill replied 1 year ago.
2 The reason the answer is contrary to the SRA CODE OF Conduct is that the solicitor is not purely acting professionally as a solicitor. The solicitor is acting as executor, which is not the same as acting professionally for a client. Where a solicitor is acting as executory he acts in the capacity as trustee to the estate and is governed by the rules governing trustees, which are different to acting professionally for a client. This is why there is the divergence. When acting as an executor, the solicitor's obligations are the same as any trustee which is to act in the best interests of the trust and of the beneficiaries. Accordingly, if an executor (solicitor) takes the view that disclosure to a beneficiary is in the best interests of the trust or the beneficiaries the solicitor may do so. There is no obligation of confidentiality attaching to acting as executor as attach
Expert:  Buachaill replied 1 year ago.
3. There is no obligation of confidentiality attaching to an executor as attaches to a solicitor acting for a client. The position does not change merely because the executor happens to be a professional solicitor. So the solicitor has a trustee type discretion as to whether s/he discloses information or not.
Customer: replied 1 year ago.
DearCustomer
My mother in her first attendance note she would like make sure both children benefit equally and her estate divided 50/50 between the boys she confirmed the was correct she latter visits solicitors and signs will as set out ( I give all my property of whatsoever description and wheresoever situate not hereby or by any codicicil hereto otherwise disposed of to my Trustees Upon to sale calling in and convert the same into money with power to postpone
such sale calling in calling in and convertion for so long as my trustees shall in their absolute discretion think fit without being liable for loss---)
The attendance note to the signing states ( She would hope that the Farmhouse would be kept by one son and that the other would be happy taking his share of the property in cash form I did advise her that this was not always possible and would depend weather he had the money other to pay his brother out and she said that they well off an she would hoped
they would settle matters this way. All she was concerned about was ensuring they were both were treated equally
After she explained it to me I was happy that she was not being influenced by anyone and
this was her wish
This Attendance not has given problems it has been refered to as a letter of wishes witch is not mention in the Will
IT would have been better if they executors / Trustees had not disclose Attendance notes
Regards William,
Expert:  Buachaill replied 1 year ago.
4. I regret to say that you cannot legally compel the solicitor, now executor, not to disclose this material. Additionally, now that disclosure has been made, you cannot successfully sue the solicitor executor for damages. I agree that the attendance notes are not a Letter of Wishes, nor can they be construed as such. HOwever, there is nothing which forces the people involved to hide them, I regret to say.

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