O
ne of the recent debates on the Trust Discussion Forum has been about the circumstances in which a lasting, enduring, continuing power of attorney can properly be handed over. To whom does such a power of representation belong? When does ownership pass from the granter to the grantee? One solution can be to agree with the granter — at the time of the creation of the power — the circumstances when the power can be given to the grantee.
We do of course have similar problems with wills and other documents. In many civil-law jurisdictions, the original will is not released by the holding notary, but he produces an inheritance certificate based on it. In jurisdictions where executors or administrators are appointed, the will may well belong to these Personal Representatives (PRs) once the testator has died. Professionally, what information is it proper to release? Once we have seen an original death certificate, the will belongs to the PRs. Before we have seen an original death certificate, we must not release the will. Can we confirm the identity of the PRs? Probably not. Can we confirm that we do hold an original will for a particular testator?
My firm has recently received an enquiry about a particular will, from a commercial will register operator that extensively markets its will searching service. After questioning, it appeared that the relevant testator had not yet died, but that the company had been instructed by a relative to locate the original will.
Does our duty of confidentiality under the STEP’s Code for Will Preparation in England and Wales extend to the existence of the will? Our conclusion was that, in general terms, we should not reveal the existence of a will to anyone other than our client until we have seen an original death certificate.
Is this too restrictive? Can’t you see you’d be a fool to cling to me?
Richard Frimston is Co-Chair of the STEP Public Policy Committee and Chair of the STEP EU Committee. He is a Partner and Head of the Private Client Group at Russell Cooke LLP and — as the title of this blog post suggests — has an affinity for the musical styling of Engelbert Humperdinck.
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Reblogged this on Wills and the rest and commented:
Not sure about this: I think it is not a breach of confidence to confirm that a will exists, but it is definitely a breach of confidence to reveal anything of its terms.
I have recently drafted a discussion paper on disclosure of a will to an attorney or court appointed deputy where the client has lost mental capacity. The court’s in England and Wales expect the attorney or deputy to have regard to the testator ‘s intention when making financial decisions so as not to frustrate the terms so far as reasonably possible. Yet we are told we are not able to disclose unless we have express authority. Ok if the client has given advance consent but not if he now lacks mental capacity Thus requires some disclosure to be able to get a court order, which in many cases will incur unnecessary expense as the will contains nothing out of the ordinary.
I hope STEP amends it’s code to reflect this.
If we are told that a client has died but have not seen the death certificate, clearly we cannot just sit around and wait for the death certificate to be produced particularly if the informant has been told that we cannot say whether or not the deceased has made a will since there is a risk that the informant, if he was one of the persons entitled to apply for a grant of letters of administration, might just do that ! What if there are instructions in the Will regarding disposal of the body etc.? I feel we need to be proactive in such circumstances but who is going to pay for our time if, eventually, the executors choose not to use our services? Informing the informant that we do hold a will or that we are aware that the deceased has made a will would hopefully avoid that but then if we are in breach of the Code of Practice???
Although the Solicitors Code of Conduct 2013 says that solicitors must O(4.1) keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents
and that ;IB(4.6) disclosing the content of a will on the death of a client unless consent has been provided by the personal representatives for the content to be released; would be likely to be a breach of confidentiality.
It does not specifically refer to issues as to the existence of a Will. Unless the client consents then it would seem to me that in general terms disclosing the existence of the Will is in breach of client confidentiality whilst they are alive, unless you are sure that the circumstances are such that the client would consent. If you know that the client is not able to give consent due to lack of mental capacity, then disclosing the existence of the Will to an Attorney or Deputy would appear perfectly in order. I have difficulty of thinking of other circumstances in which the existence of the Will should be disclosed during the testator’s lifetime without their consent.
If you are certain that the testator is dead then I can see that you can disclose the existence of the Will, but personally I would not reveal its contents including the identity of the executors, until you have seen a death certificate. Whatever a Will says about funeral arrangements, does not seem to me to be a reason to breach this rule.
Richard Frimston
Interesting blog. Good to see a light-hearted post on the topic of wills.