Rosa Klebb
Registered User
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- 12
So the solicitor is imposing a condition on distribution that the executor does not require. That is unacceptable.
I have no problem in disagreeing with august bodies such as the Law Society. To my mind, the best protection against litigation that a solicitor has is to do the job properly, and if the job has not been done properly then a person who has been adversely affected by that should have recourse to the courts.Unfortunately in this world of 'i will do what i like and even if i'm wrong i can always sue someone, hopefully my solicitor' solicitors are wise to be cautious.
It may well have formed part of the initial letter/contract of engagement with the solicitor which forms the basis on which the solicitor will act. Law Society states that these indemnities should always be obtained. There are guidance committees that the solicitor could obtain a steer from if they are unsure about their exposure where one beneficiary will not sign. I've certainly come across it before and it is a difficult issue.
I have no problem in disagreeing with august bodies such as the Law Society. To my mind, the best protection against litigation that a solicitor has is to do the job properly, and if the job has not been done properly then a person who has been adversely affected by that should have recourse to the courts.
It is oppressive to require a person to renounce legal rights he or she might have as a condition of giving them that to which they have an absolute legal entitlement.
How would it play out if one of the beneficiaries initiated action under S.62 of the Succession Act? [OP, look at that section; you can find it here:
62.—(1) The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.
Staged escalation is often a good strategy. Avoid bringing in extra lawyers unless you have to.Yes, I've read that section before. Since we're well past a year on this estate, that's partly why my father is so frantic to get it sorted.
I should add that the solicitor is being very uncooperative and unresponsive to calls from my father. But it would be difficult to start with a new solicitor, as there isn't money to pay one. All of the bequests have been calculated and signed (bar one). So there would be no money to pay additional legal expenses, without re-doing the estate accounts and starting the bequest letters all over again.
Staged escalation is often a good strategy. Avoid bringing in extra lawyers unless you have to.
Why not invite one (or more) of the beneficiaries to write formally to your father, who is the executor, asking for payment of his or her legacy, citing S.62? Your father can then pass copies of the letter to the solicitor, with a written instruction to make the payment(s).
Is the estate in Ireland? That is probably determined by where your uncle was resident in Ireland at the time of his death.
I infer that the beneficiaries already have ideas! But yes, the simplest measure would be for you to write the letter. If that frees up the logjam, then the other distributions should follow - unless the solicitor is particularly obdurate, which seems possible. He may need to get a bundle of letters written.
Regarding the final paragraph: I have to disagree. Every will needs an executor (but not every executor needs to employ a solicitor). I have taken on the role of executor and have not had problems with the beneficiaries. But that is partly good fortune, and partly because I am comfortable with the sort of procedures that are involved - legal and financial stuff, and keeping people onside with me.
I know that your father would prefer to have the solicitor discharge the residuary entitlements but to shortcut matters would it not be an idea for your father as Executor to instruct the solicitor in question to lodge the funds in an account designated in your father's name as the Executor of X's Estate .
Your father could then pay the beneficiaries , I would however lodge the monies due to the single dissenting beneficiary to a deposit account pending a solution to the failure to complete the indemnity.
No financial reward; possibly even some small expenses that you don't get around to claiming - little things like phone calls, stationery, stamps, short journeys. I have actually found the task rewarding in other ways, most particularly in helping me come to terms with the death of the testator. Yes, there is work involved - it happens to be the sort of work to which I am suited, so it doesn't put me under any intolerable pressure....
My point about acting as executor is that it is all effort and liability and no reward....
So can we agree a middle way: don't agree to be an executor without knowing what is involved in the role, and feeling confident that you are up to it?
I suggest that your father's difficulty is not fundamentally in being an executor, but in dealing with a particular solicitor who you describe as "very uncooperative and unresponsive to calls".
Some professionals (not just solicitors, and by no means all of them) fail to show sufficient respect for their clients' wishes. In such circumstances, it is often best to give instructions very clearly and in written form. A verbal formula along the lines of "I hereby direct you to..." can be very effective. If the professional gets back to say "I don't want to do this" then he or she should be asked to explain why in writing, and the reasoning can then be considered. A straight refusal to obey a direct instruction is a basis for going to the person's professional body.
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