Probate Claims – Consent of the executors must be obtained

Often clients come to us to begin with saying ‘the executors or the solicitors will not give us a copy of the will’.

Contrary to what most people believe beneficiaries and people interested in an estate are not entitled to a copy of the will. This is very much as to the discretion of the executors. The Will becomes a public document when the grant of probate is issued from the District Probate Registry and a procedure is in place to obtain a copy of the grant and the will post issue.

Professional advisers are in a slightly different position in that there maybe a quandary, which presents itself upon request of the information. To what extent is it appropriate for the solicitor or probate practitioner who prepared the will to be involved in advising the executors as to the disclosure of the will file, and, indeed the merit or otherwise of a claim arising out of that file.

As already mentioned, there is potential negligence on the part of the firm preparing the will if it is found that the testator had insufficient testamentary capacity, particularly if the practitioner did not comply with the rules, or where undue influence was exerted over the testator and the solicitor failed to be receptive to this undue influence and/ or attempt to eliminate it.

Where professional negligence is expressly alleged , or indeed it is reasonable to conclude that it might be at a later date the firm should ask itself whether they should refer the executors to independent advisers, as a failure to do so would clearly put the firm in a hopeless and clear conflict of interest.

However before the release of a copy of the will or indeed the will file permission of the executors must be obtained.