Mandates in Executries
In 1986 the Council published a Guideline on a solicitor's duty to implement a mandate where the solicitor is one of the executors and also acting as agent in the executry. Two partners of a firm were executors along with the deceased's widow. The widow consulted other agents and a mandate from her was sent to the solicitor executor's firm. They declined to implement it which led to a finding of professional misconduct.
As part of their recent Review of Practice Guidelines the Committee considered this matter and reaffirmed the Council's view as follows:
Where there is a combination of solicitor and nonsolicitor executors, a solicitor executor should not use his power as executor to secure the continuity of his acting as solicitor in the winding up of the estate. In such circumstances the solicitor may either cease acting or resign as executor.
If the solicitor ceases to act but remains as executor, he should bow to the wishes of the other executors on which firm should take over the administration of the estate. Failure to do so gives rise to a conflict between the interests of the executors and the interests of the solicitor's practice.
If the solicitor decides to resign, he should seek a discharge and obtemper any mandate if the remaining executors resolve that another firm should act.
