Minor Beneficiaries and refusal of Executros to act

Trusts Discussion
1

I would appreciate any advice on the following situation:
I drafted a will for the deceased. At the time of drafting the lady was separated from her husband. She was also estranged from her only daughter. As she was going through a divorce she severed the ownership of the home in which she used to reside in with her husband. She did not want her daughter to benefit in any way from her estate. She left her residuary estate to three minor children. Those children being her daughter’s two children and her husband’s grandchild (from a previous relationship). She appointed her niece and nephew to act as executors.
This lady divorced her husband and continued to live with her mother. Due to an illness and her mother’s death she went back to live in the home that she owned with her ex-husband. She lived there with her ex-husband and her daughter and her daughter’s family.
The tensions that have arisen as a result of this lady’s death have been shocking. Part of the family has said that the deceased’s daughter has taken the deceased’s inheritance of over £20,000. The executors have refused to act and have used a family member to draft Deeds of Rescission. It would appear that there is no cash in the estate and nothing to pay the funeral director with. They remain Trustees of any trust arising under the will.
I have been contacted by someone who called on behalf of the deceased’s daughter asking for a copy of the will so that the life insurance policy can be cashed to pay the funeral director.
I have spoken to SRA Ethics helpline and they say that I am not under an obligation in conduct to notify anyone of the will. They have said that the duty of confidentiality is to the executors.

Collette Hodkinson

CPH Solicitors

2

The SRA Ethics Helpline is I think correct in saying that a duty of confidentiality is owed to the executors. But if the executors are planning to abandon the estate I think there may be an exception to the general principle; Larke v Nugus illustrates that the duty is not absolute and unconditional.

By Deed of Rescission I assume you mean a renunciation. A renunciation must be filed with the Probate Registry to be effective, and I have found statements in textbooks (although no statutory authority) for saying that the will must be filed with the renunciation. Perhaps the way forward is for you to write to the executors and make them aware of this, and ask their agreement to deposit the will with the probate registry, which should prevent any application based on an earlier will or intestacy.

Tim Gibbons