Executor's right to a Will

I act for two clients, who are two of the three executors named in the Will of their late father. The third executor has asked for a copy of the Will and does not know that he is appointed. My clients have not authorised me to release the Will, and intend to give notice to the third executor that they are applying for a grant, a day before they complete the Oath form. The third executor has asked for a copy of the Will. Do we have a duty to release the Will, or to advise him that he is the executor?

Haroon Rashid
I Will Solicitors Ltd

Your clients’ instructions are unlawful and might in the circumstances amount to an offence under sec 20 Theft Act 1968. In any case a grant obtained in that underhand way would almost certainly be liable to be set aside on application by the excluded executor.

This does not authorise you to disclose the will, but if your clients persist in this course you should withdraw from acting for them.

Tim Gibbons

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Executors have to act unanimously.

Therefore you have no power to disclose information about the Will to the third executor if not authorised to do so by the other two, and you are not authorised to assist the first two in applying for a grant, or to produce the Will for the purposes of the first two applying for probate, in the absence of instructions in that regard from the third.

Julian Cohen, Solicitor

The problem here is that the executors (siblings) are at a point where they will soon be ‘trading blows’. The Will can be released but my clients will still want to take out the grant in their joint names. Would a week be a sufficient waiting time, bearing in mind that the ‘excluded’ executor has only just formally asked for the Will? The executor is unlikely to take formal legal action, (more likely he will take illegal action but that’s a different story!).

My clients intend to distribute the estate according to the Will and practically if all executors are involved, then I can only see an expensive section 50 application arising which is to the detriment of all. Any thoughts would be appreciated.

Haroon Rashid
I Will Solicitors Ltd

Your problem is that you cannot release the Will because you do not have instructions from the three executors. Therefore the two executors cannot apply for a grant.

I believe I have seen a previous posting where in this sort of situation a solicitor said he sends the original Will to the Probate Registry – whether that works I don’t know.

Julian Cohen, Solicitor

Julian - just to clarify, I am advising my clients to release a copy of the Will. The ‘excluded’ executor has not said anything about the original Will. If they release a copy and wait a week or so for any possible dialogue can they apply for a grant thereafter with the appropriate notice having been given? The Will writer involved, released the Will to my two clients.

Haroon Rashid
I Will Solicitors Ltd

The executors have equal rights to access the will.

Whilst I do not believe the actions proposed are unlawful, they are
unlikely to improve family relationships.

Rather than seek to revoke any grant issued to the 2 executors, the
third executor could obtain a grant of double probate, which ranks
equally with the first grant.

Although executors can act individually, third parties will be more
concerned to protect themselves than go out on a limb, so that asset
holders presented with both grants may refuse to accept other than joint
instructions form all 3 executors.

This may result in the administration of the estate being frozen.

Paul Saunders

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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.

Stuart Adams
Mishcon de Reya LLP

Thanks Stuart. Your reply reinforces the way I had been proceeding but I had some doubts and hence wanted to hear the views of others. As you have said, it is normal practice for notice to be given to non-proving executors and once that notice is given, the grant is applied for. The difficulty here is that my clients have advised that they do not want to release the Will or its contents to the excluded executor, nor advise him that he is an executor. I have advised them that we will need to give notice informing him that he is an executor before any grant is applied for, and will also encourage them to give a copy of the Will at the time of giving notice. The question is, is a day, or a week sufficient notice? Technically, the Oath states that notice has been given, and therefore, I would assume that notice (first class post letter), a day before the Oath is sworn is sufficient, albeit close to the bone? We can only act on valid instructions and whereas I am all for preserving family relationships, I don’t think the parties are interested in the same.

Haroon Rashid
I Will Solicitors Ltd

If you had held the original Will, I believe you would have been under a professional duty to send each executor a copy. However, you do not and your clients are two of the executors acting independently. As such you are under no duty to the third executor, although clearly you must advise notice is given when you apply for the grant.

Simon Northcott

I am not a solicitor but whenever I have personally assisted with an application for Grant of Probate for members of my family the Will had appointed several family members as Executors and I did not know that they were or could be appointed jointly/severally.
I always understood that the appointment of two or three Executors meant that they must act together ie jointly, unless of course, as happened with my Probate experiences, one or more of the other appointees gives their Power of Attorney to one or two to act without them.
The Probate Office always insisted, in the 3 or 4 cases that I completed, that ever before the Grant of Probate got to the final swearing of the Oath, any Executor ‘not acting’, as it were, had to officially sign one of their Power of Attorney forms to relinquish their duties in favour of the remaining Executor/s.
I always imagined this to mean that jointly appointed Executors in a Will had to agree to act together or agree to act severally for such Probates to follow their normal course.

Gerard McShera
Axel Legal Services Ltd

In response to Gerard McShera, in some instances executors must concur in their dealings, for example, with land – s.16 Law of Property (Miscellaneous Provisions) Act 1994. However, personality is an example of where they do not.

It is not the case, certainly not in my experience, that the Probate Registry requires executors who have power reserved (as we have been concerned with above) to sign a power of attorney in favour of the remaining executors. If an executor did not wish to act, but was not prepared to renounce and to whom power was not reserved, I think I am right in saying that he or she could not grant a power of attorney to anyone for the purpose of extracting a Grant on their behalf where another appointed executor was acting and intended to extract a grant. This is because you can either extract a grant of probate or one of letters of administration – it is not possible to have a mixture of executors and administrators (in this case ‘attorney administrators’). If, as you describe, an executor signed a power of attorney in favour of a co-executor before the Oath was sworn, I do not believe that they would have been able to extract a grant on that basis. I am sure there is further detail that, although missing here, would clarify the position in your example.

Stuart Adams
Mishcon de Reya LLP