Paper Lawyers As Executors If You re Going To Do It Do It Right
The paper by Stephen Lynch (Somerville Legal) is a practical guide for solicitors who are asked to act as executors of estates. It begins by warning that the executor role carries significant fiduciary duties and risks, especially for solicitors, who are over‑represented in professional indemnity claims and regulator complaints. The author outlines the core executor duties, then weighs the perceived advantages of a solicitor‑executor (legal expertise, familiarity with the testator, impartiality) against the pitfalls (charging disputes, conflicts of interest, workload constraints). The bulk of the paper analyses charging issues: the distinction between professional and non‑professional work, the need for clear charging clauses, the strict scrutiny applied by courts under Rule 12 of the Solicitors Conduct Rules, and the limited circumstances in which a solicitor may claim commission. Various methods of obtaining remuneration are examined – charging clauses, beneficiary consent, and court‑applied commission – with detailed discussion of case law (e.g., Walker & Ors v D’Alessandro, Szcmulewicz v Recht, Walker v Allesandro) and statutory commission ranges across Australian jurisdictions. The paper then addresses conflicts of interest, both personal (solicitor as witness in will litigation) and beneficiary‑bias, citing recent decisions (Makripoulias, Wild v Meduri) and emphasizing the need to withdraw from litigation where a material witness role arises. It also covers litigation cost issues, notably the rejection of the Chorley exception in Australia. Finally, the guide discusses special assets – companies, trusts, and self‑managed super funds – highlighting director/ trustee duties, potential personal liability, and practical steps for managing these structures. The conclusion urges solicitors to assess their competence before accepting executor appointments, to disclose all remuneration entitlements under Rule 12, to avoid conflicts, and to seek professional or judicial advice where needed.
Topics
Executor Role: Duties, Fiduciary Obligations, and Practitioner Risks
Outlines the statutory duties of an executor (locating will, probate, asset identification, distribution, etc.) and emphasizes the fiduciary duty owed to beneficiaries, highlighting the heightened exposure of solicitor‑executors to professional indemnity claims and regulator complaints.
Professional vs. Non‑Professional Executorial Work and Charging Implications
Explains the legal distinction between work requiring legal skill (professional) and routine executorial tasks (non‑professional), and how this distinction determines what a solicitor‑executor may charge without a specific clause or court approval.
Rule 12 Disclosure Requirements for Solicitor‑Executors
Summarises the obligations under Rule 12 of the Australian Solicitors Conduct Rules, including written disclosure of commission entitlement, charging provisions, and the option for the client to appoint a non‑charging executor.
Methods of Obtaining Executor Commission and Their Judicial Treatment
Analyzes three routes to remuneration – statutory or contractual commission clauses, beneficiary consent, and court‑applied commission – with discussion of statutory rate ranges across jurisdictions and the courts’ cautious approach to fixed‑rate clauses.
Conflict of Interest: Personal Interests and Beneficiary Bias
Examines conflicts arising when a solicitor‑executor has personal stakes (e.g., being a witness in will litigation) or preferential relationships with certain beneficiaries, citing Makripoulias, Wood v Wood, and Bird v Bird as illustrative cases.
Special Asset Management: Companies, Trusts, and SMSFs
Provides practical advice for solicitor‑executors dealing with corporate directorships, trust administration, and self‑managed super funds, highlighting personal liability, insurance considerations, and statutory compliance requirements.