Executor's conflict of interest


#1

I act for an executor of her brother’s estate. She claims that she is entitled to his house, which is the main asset of the estate. The claim is based on settlement of his business debts in return for a promise of the house, which is recorded in writing and signed by the deceased, albeit in the briefest terms and without the benefit of any legal advice.
Should she act as sole executor?
Could she take counsel’s opinion on her entitlement to the house as executor at the expense of the estate?

Richard Mugford
Mugford & Co Wills (Fareham) Ltd


(Paul Saunders) #2

I suggest the client should discuss her claim with the (other)
beneficiaries, to see if they will accept the position.

Before doing so, though, she should take advice as, to my mind, being
executor may strengthen her position as her entitlement could be
bolstered by the application of the decision in Strong v. Bird, but may
also be seen as an aggressive act by the beneficiaries.

However, if Strong v. Bird would apply, not taking the grant may
undermine her claim, depending upon the perceived reliability of her
documentary evidence

Whether or not to take the grant may, therefore, need to be a strategic
decision supported by advice (from counsel).

Paul Saunders