What is my duty to the Executor?

Your thoughts on my situation would be greatly appreciated.

The deceased died in June 2014. The only 2 executors are S (son) and D (daughter) and they are also the only 2 beneficiaries.

S has all the deceased’s paperwork but by November 2017 he had taken no steps to administer the estate. D instructed Solicitors to write to S and this is when S instructed me to help him administer the estate. D agreed to jointly instruct me and she disinstructed her other Solicitors.

S gave me the original Will but no paperwork. He told me he had valued all the assets and that he would send me this information. For months I requested the asset values/paperwork but S ignored all letters, emails and phone messages. In March 2018, D instructed me to obtain the asset values myself and I wrote to S to tell him this is what I was doing, and to give him a revised costs estimate. S didn’t respond to this letter until today.

In the meantime, I had valued the estate (none of the asset holders had been informed of the death) and prepared the probate application for D to apply with power reserved to S. The Oath hasn’t been sworn yet (it was due to be sworn today!)

This morning S telephoned me to ask what’s happening and, when I told him, he said he wants to be named on the Grant with D. D doesn’t want this because she thinks S will hold up the sale of the flat (which has been empty since the deceased died in June 2014 and is incurring service and maintenance charges).

My view is that S has demonstrated his unsuitability to act as Executor due to his inactivity between June 2014 and November 2017, and again between November 2017 and today. I would therefore like to proceed on D’s behalf only, but I’m conscious that it was S who originally instructed me to act on his behalf.

My questions,therefore, are:

  1. What is my duty to S? Should I now stop acting because I don’t have joint instructions from the executors (or should I have stopped acting prior to today)?

  2. Do I have a duty to S and D as the beneficiaries of the estate and, if so, does this justify me acting applying for a Grant in D’s name?

Karen Shakespeare
Geoffrey Leaver

I think that as you were jointly instructed you could only continue to act for D with the express approval of S, which is unlikely now. You should advise D to instruct other solicitors, who can consider the litigation options.

You then have another awkward situation because your file is the joint property of the two clients who instructed you, as is the will. If holding the will is a matter of embarrassment I would suggest it might be deposited at the Probate Registry.

I would expect that on these facts D should be able to get S passed over as executor.

I think it is arguable that you should have realised there was a conflict of interest at an earlier stage, when S withdrew his cooperation, and taken these steps then, but given that S was clearly not acting as a responsible executor and D was I don’t blame you for trying to hold the administration together and hoping for the best.

Tim Gibbons

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