Clause Binding Use of Solicitor in Will

Trusts Discussion
1

Hello all,

First post here!

We have received instructions to deal with an estate. The will (drafted by another firm) has a clause stating the following:

“I direct that should a solicitor be required to undertake the administration of my estate my trustees shall instruct X Law”.

Is this clause binding upon the executors? They now wish to instruct ourselves in the estate rather than the firm stated in the will.

The executors are lay executors and the firm in question were not appointed as executors.

My thought is that the clause is not binding but have been unable to ascertain whether this is correct through some initial research.

Please may I enquire if anyone has encountered this situation and is able to advise if the executors are bound by the clause or not?

Many thanks

Doris Raggatt
MLP Law

1 Like
2

Hi Doris,

I have a similar situation - did you come to a conclusion?

Kam

3

Hi Kam,

I am sorry I never got a definitive response to this so I think we went ahead on the basis that the clause was not binding.

Many thanks

4

There is no contract between the executors and the named solicitors so no obligation to use them. However it clearly shows the strong wish of the testator, and the executors would need to be able to justify their decision. Grounds could be experience costs location etc.

Simon Northcott

1 Like
5

Thank you Doris. I’m inclined to go down that route. SRA were of no help, as usual.

There is a suggestion that case of Foster v Elsley 1881 suggests that they can’t be bound by such a clause. But I would have thought there would have been more recent guidance from the SRA or Law Society.

Thanks for coming back to me anyway.

Kam

1 Like
6

In principle I believe the clause is not binding. In the absence of a contract, as Simon points out, the executors are not bound and there is no cause of action on the part of the named solicitor/firm or of any beneficiary if another is appointed, as opposed to the executors’ responsibility for appointing that other. The Will does not create a contract and one made by the deceased in lifetime does not bind his PRs.

The OP does highlight the dubious choice of appointing a solicitor or firm as executor. They are then free to act as agents and there is potentially a conflict of interest over the scrutiny of their fees if the beneficiaries are unhappy with them.

Jack Harper

7

I would be cautious as there may be reasons why the solicitors are so named – they may have knowledge that others don’t that would be relevant to the administration of the estate. Not everyone shares details of their finances, etc., with those closest to them, instead preferring to share with a trusted third party.

Even if the clause is not binding, as I also believe is the case, I suggest the solicitors be contacted if only to clear-off the above.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals