Two executors

[Henrietta]

Hi,
can you tell me if there are two executors,can one executor remove the will from the solicitor without informing the other.I know of a case where this has happened.How should other executor proceed?

 

[Marathon Man]

Hi Henrietta,
I've been in a similar situation. btw, I'm not a solicitor. To sum it up - the situation can be "difficult".

Each executor has the same "powers" and rights as the other, as if either was the (single) executor. That means full disclosure of all matters. Neither executor may exclude the other. In practice, as in the case you mention, this does not always happen.

It is likely that the solicitor will have a copy of the will, if not the original. Did the solicitor say that the will had been given to the second executor (S.E.) -or did the S.E. say that the had it? Unless the business has been taken away from the solicitor, it is likely that he has the original and the S.E. has a copy. Ask the solicitor for a copy!

On the other hand, the business cannot unilaterally have been taken from the solicitor, so he shouldn't have given - and probably didn't - out the original will.

If the two executors can't agree, or get on, you'll have to get the solicitor to try to suggest how to proceed - more time and money. If you still can't then proceed, you'll have to weigh up the benefits of taking it further, probably through a third party solicitor - the first (probably) can't act against his own client , and take things from there.

A lot depends on the estate and the beneficiaries - how much, who gets what, are minors involved. Very often things can get very nasty and people end up not talking for years. It can be a no-win situation - take action and lose, or take no action and lose anyway!

Not an easy situation, but remember the testator probably felt that balance was needed between the executors to carry out his wishes, hence the joint executors.

I wish those in this case a better overall outcome than I had!

 

[Marie]

Hi,
can you tell me if there are two executors,can one executor remove the will from the solicitor without informing the other.I know of a case where this has happened.How should other executor proceed?

Do you mean 'move the probate work from one solicitor to another firm' ?.........in which case the answer is "Yes!.........an executor can unilaterally move the probate work to another solicitor and proceed as if they were a sole executor". The newly-engaged solicitor will then keep the excluded executor informed formally in writing and take their views into account.

The second part of your question is not easy to answer in absence of any detail about whether the joint executors are themselves beneficiaries etc., etc.

 

[Henrietta]

Thanks Marathon man and Marie, i'll clarify things further.
S.E called to solicitor shortly after deceased's death and collected will.When F.E enquired re 'will reading', which I know does not happen, he was told that all solicitors were checked and no will could be found but a really old will was located in deceased's house and lo and behold, there was only one executor,namely,S.E.
F.E knew one did exist as he had been given the name, address etc of solicitor in writing stating that there were two executors some years ago.

Also both executors are beneficiaries.
Any advice on how to proceed would be appreciated,
Henrietta

 

[Marathon Man]

an executor can unilaterally move the probate work to another solicitor and proceed as if they were a sole executor". The newly-engaged solicitor will then keep the excluded executor informed formally in writing and take their views into account.

Are you certain of this? Are you a solicitor? BOTH executors are in effect, the deceased in all but name and have full legal rights over the estate. I can't see how one executor can, without good reason and without going through the courts, over-ride the position of the other executor. Surely both executors, who have EQUAL legal standing, would have to agree?

On the other hand, what you say would fit in, to some extent, with what happened in my own case. In my case, any questions I asked, of the other executor - who had assumed total control over everything - were largely limited to "Yes" and "No" type answers.

I had intended resigning as executor, however my own solicitor suggested, rather than going through the courts or resigning, that I "reserve my position". This enabled me in effect to withdraw from the situation but that the other executor was still obliged to keep me informed. I received no further communication from the other executor following this.

In spite of all of this I fully believe that two executors is a good idea. As my own solicitor, whose counsel I value greatly, pointed out, if there is only one executor and he/she is unable to act, for whatever reason, the situation can get very complicated and that is certainly undesirable where minors are involved.

 

[Marathon Man]

Thanks Marathon man and Marie, i'll clarify things further.
S.E called to solicitor shortly after deceased's death and collected will.When F.E enquired re 'will reading', which I know does not happen, he was told that all solicitors were checked and no will could be found but a really old will was located in deceased's house and lo and behold, there was only one executor,namely,S.E.
F.E knew one did exist as he had been given the name, address etc of solicitor in writing stating that there were two executors some years ago.

Also both executors are beneficiaries.

Marie,
If I read you correctly, SE, collected will from solicitor, subsequently claimed that no will exists (or was collected from the solicitor) but that an earlier will does exist. Is this correct?

Any will is negated by, among other things, a more recent will. If the SE got a more recent will from the solicitor, then THAT is THE will. So the earlier will that SE has is as useful as used tissue.

I suggest you go and see the solicitor and ask for a copy of the will. I don't know how solicitor's operate but I'd find it hard to believe that the solicitor doesn't have a copy or draft. That will have details of dates etc. The solicitor will be able to confirm that it existed and post-dates the will that SE has. One cannot get a legal document and deny then that it ever existed. If it comes to it, it may be SE's word against the solicitor - I reckon it's pretty clear whose word would be believed.

If push comes to shove, SE will have to produce the will removed from the solicitor.

BTW, I HATE bullying type behaviour and I would class this as a form of it! Good luck with the case!

 

[Stifster]

Marie,
If I read you correctly, SE, collected will from solicitor, subsequently claimed that no will exists (or was collected from the solicitor) but that an earlier will does exist. Is this correct?

Any will is negated by, among other things, a more recent will. If the SE got a more recent will from the solicitor, then THAT is THE will. So the earlier will that SE has is as useful as used tissue.

I suggest you go and see the solicitor and ask for a copy of the will. I don't know how solicitor's operate but I'd find it hard to believe that the solicitor doesn't have a copy or draft. That will have details of dates etc. The solicitor will be able to confirm that it existed and post-dates the will that SE has. One cannot get a legal document and deny then that it ever existed. If it comes to it, it may be SE's word against the solicitor - I reckon it's pretty clear whose word would be believed.

If push comes to shove, SE will have to produce the will removed from the solicitor.

BTW, I HATE bullying type behaviour and I would class this as a form of it! Good luck with the case!

Agreed, albeit that what really matters are the terms of the will rather than who has been appointed executor.

That is a pretty shocking story though.

 

[Henrietta]

Could any solicitor out there let me know if it is normal to have either a copy,a draft or a file associated with an original will.Surely if the original has been removed fom the solicitors all details cannot be lost forever.
If,as we suspect the S.E has destroyed the will that was with the solicitor because the F.E was likely to benefit more substantially from this there has to be some comeback if only to ensure that ALL deceased's wishes are adhered to?
ALso to answer Marathon man earlier.The solicitor told F.E that S.E had already collected will so S.E does not know that we know he has it.A far as he knows we think there is just will found in house.

 

[Marathon Man]

The solicitor told F.E that S.E had already collected will so S.E does not know that we know he has it.A far as he knows we think there is just will found in house.

Irrespective of whatever advice we give you here, I think you need to let the solicitor know the situation without delay.

I advise calling into the original solicitor's office, in person, and having him deal with it. If you were to engage another solicitor on your own behalf, that will only make things even more complex....and the original solicitor knows the story. I think you will find him very sympathetic. Nip this in the bud. SE is in a very dodgy position. You might also want to ask about having SE removed as executor, based on his conduct. However, faced with the evidence, SE may well "remember" that he had got "some documents from the solicitor" and "temporarily mislaid them".