I act on behalf of beneficiaries of an estate where a named solicitor was appointed sole executor. I’ve made enquiries with the SRA, but I’ve been unable to trace them. The firm holding the original will is unwilling to release it to anyone other than the executor. What should I do?
The original will is the property of the client and, after the client’s death, the property of the estate.
As a matter of professional conduct, the firm in question cannot release the will to anyone other than the executor.
To move forward will require establishing what has happened to the named executor.
If the executor has died, their rights concerning the grant will cease. The production of their death certificate should enable the firm holding the will to release it to the person(s) next entitled to apply for letters of administration with will annexed (see rule 20 of the Non-Contentious Probate Rules 1987).
Search for a death certificate on the GOV.UK website
In the absence of a death certificate, you could:
- check the electoral roll
- consider using the Department for Work and Pensions letter forwarding service using the last-known address (you will need to pay a small charge)
- use an enquiry agent to attend the last-known address
If, however, you still cannot trace the solicitor, the estate should not be left unadministered. A court order will be required to remove/substitute the solicitor as executor.
An option would be for an application to be made under section 116 of the Senior Courts Act 1981 to pass over the executor.
In relation to the release of the will on a practical level, if the firm refuses to hand over the original will, you could ask them to lodge the will at the probate registry where the application for a grant is going to be made.
If they’re unwilling to do so, you can apply for a subpoena for the production of the will under section 123 of the Senior Courts Act 1981. The application:
- should be made to a master or district judge
- may be made without notice
- must be supported by written evidence setting out the grounds of the application
Practice Direction 57 of the Civil Procedure Rules sets out the procedure.
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Disclaimer
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.
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