Deceased appoints partners of firm as executors and creates a trust over a property giving a right of occupation to two minors until a specified age. Residue to two adult children - C1 and C2. Executors wish to retain a contingency fund from residue in respect of the same. What power is there for them to do so?
In addition, Residuary Beneficiaries C1 and C2 seek disclosure of notes of attendance relating to costs, and the choosing of professional executors. Disclosure will be embarrassing for C1 as details of their parent’s disparaging comments about them are set out, as are details of the considerations of the parent to exluding C1 . Does the note have to be disclosed contrary to the best interests of the deceased?
Rubin Lewis O’Brien
These are, I assume, notes of meetings with the deceased while taking instructions for the will. If so they are subject to legal advice privilege as well as confidential - those duties continuing after death. It is for the executors, standing in the deceased’s shoes, to decide whether and when to disclose the notes.
On the other hand, I don’t think the deceased has any best interests to be considered now - the executors’ concern is the proper conduct of the administration.
If there is no power in the will I don’t think a fund can be retained but the trustees might set conditions as to payment of outgoings under sec 13(3) TOLATA- I’m not sure if that would extend to a regular sinking fund-type payment. Do the minor beneficiaries have any other interest under the will? If not it may be impractical to enforce although the condition might be imposed on their parent(s)