Executors must usually act unanimously. However, when it comes to the exercise of an executor’s authority to release or transfer assets of the estate, then his/her ability to act jointly or jointly and severally depends upon the asset in question. Here we are talking about a Will – aka personalty. Where there is more than one executor, their authority is joint and several. An executor can, therefore, act alone in dealing with personal property and his/her acts in that regard will bind the other executors. It is not necessary for a solicitor (or otherwise) holding an original Will to insist that they can only release the original with the authority of all named executors, but I can see that it might be regarded as a matter of preferred if not best practice.
I disagree with Julian Cohen that Haroon Rashid is not authorised to assist the first two executors in applying for the grant and/or to produce the Will for the purposes of their application. It is often the case that one of several executors will instruct a solicitor to make an application for a Grant of Probate on their behalf notwithstanding that there are other named executors. Those executors must receive notice of the application, but they need not consent to the other executor’s application nor give authority to the solicitor in respect of producing the Will as a part of the application for the grant. I contend that the two executors can apply for probate absent any ‘authority’ from the third. Notice of their application must, of course, be given to the third.
I am not so sure that there is much mileage in the s.20 TA 1968 point on these facts. However, I would suggest to the two executors that they accede to the request of the third and give him a copy of the Will. As soon as their application for probate is granted, the Will will be available to the public for the usual fee.
I agree with Paul Saunders that a Grant of Double Probate could be the result of this ‘dispute’ if the third executor is so minded. Paul highlights the problems that can result.
Mishcon de Reya LLP