Mark Terrar, an Associate Solicitor and Emma-Louise Bradley, an Assistant Solicitor within the Contentious Probate Team explain the steps that a will draftsman should take when faced with the situation where the Executors named in a Will cannot decide or agree on where the original Will should be sent. A will draftsman’s role in these circumstances is one of neutrality and he must ensure that in any dispute between Executors, he acts fairly and equally between them.
An original Will is a document of vital importance as it needs to be sent to the Probate Registry when the Executors apply for a Grant of Probate. Therefore, it is a document that the Executors will want to have in their possession as soon as possible following the testator’s death. No problems arise when both Executors are in agreement as to where the original Will should be held, but what happens if the Executors cannot agree?
If a testator has executed his Will with the assistance of a will draftsman, it is usual for him to leave the original document with the professional in secure storage. The testator may also retain a copy of the executed Will himself. When the testator then passes away, the will draftsman may receive requests from various family members or friends of the testator for the original Will to be released to them. It is of vital importance that the will draftsman recognises that the only individuals entitled to the original Will are the Executors named in it.
Emma-Louise Bradley goes on to say “If the Will names one person as Executor, the will draftsman should only release the original Will to that Executor and the Executor should confirm receipt on delivery or collection. If there is more than one Executor, the Will belongs to them all and the will draftsman can only act on authority from all of them.”
So what happens therefore if the will draftsman receives contrasting instructions from the Executors as to where the original Will should be sent? The will draftsman is a neutral party and must not prefer one Executor over another. Therefore, the will draftsman cannot release the original Will to the one who asked first or the one named first in the Will, for example. He should inform the Executors that he will be unable to release the original Will until he is in receipt of a letter of instruction or form of authority signed by all of the Executors.
Mark Terrar comments “If the Executors still fail to agree where the original Will should be sent, it may be prudent to then seek for them to agree for a professional to act on behalf of them all in the administration of the Estate. The original Will can then be sent to that professional acting on their behalf.”
Sometimes however, it will simply not be possible for Executors to reach an agreement on anything. If this is the case and agreement does not seem likely, the will draftsman should consider sending the original Will to the Probate Registry informing it of the circumstances that resulted in this step having to be taken. The will draftsman should then inform the Executors of what he has done and why.
By taking these steps, this should ensure that the will draftsman is not accused of preferring one Executor over another and ensures that he has acted neutrally in his dealings with the Will.
Mark Terrar concludes “If a will draftsman is faced with the situation where he is being pulled in different directions by Executors, he must ensure his neutrality is not called into question and must not do anything which can be seen as favouring one Executor over another. If a will draftsman is unsure as to how to deal with an Executor when this issue arises, he should obtain independent legal advice as soon as possible.”
The Wilkes Partnership Contentious Probate Team advises will draftsman on their obligations when dealing with a Will and disputes between Executors and family members. If you wish to discuss any of these issues in further detail, please contact Emma-Louise Bradley or Mark Terrar.