Discussing “tradecraft” matters of etiquette and how to avoid making blunders, the author recalls some situations that have arisen in wills and executry practice. His advice is personal opinion

“My father has died”

A woman telephones you first thing in the morning to say: “My father has just died; I think you are holding a will for him.” You reply: “I am very sorry to hear that. What was your father’s name and address and what is your name and telephone number?”

Once the caller imparts this information you say “I will telephone you back in the next 15 minutes.” 

You drop whatever you are doing and go immediately to the strongroom and retrieve the will. Eight minutes after speaking to the woman, you telephone her to say: “I have your father’s will here in my hand. What do you want to know?” This impresses people. Because for them this is a very important event in their life, they expect other people to respond accordingly. What they do not want to hear from you is something to the effect: “I will get my secretary to look out the will and I will phone you back sometime later today.” 

As a precautionary measure, before telephoning the woman back you look at the will to make sure that she is either an executor or a beneficiary. If she is neither, then apart from confirming that you do have a will for her father, you do not disclose its contents. 

My father’s estate

A woman telephoned me one day to set up an appointment to discuss her father’s estate. I assumed that her father had recently died and I looked out the will and sent it off to the sheriff clerk to be registered. On the afternoon of the appointment I just happened to look out of the window and I saw the woman walking up the car park accompanied by her father. She wanted to discuss estate planning while her father was still alive. After the appointment was over, I contacted the sheriff clerk and managed to retrieve the will and lodged it back in the will cabinet. I did not disclose my error to the client.  

On the subject of wills, if you make a new will for someone it will supersede any existing will, but you have no authority to destroy the earlier will. What I do is to draw two parallel lines on the backing of the earlier will and write on it: “SUPERSEDED 2020”. Anyone picking up such a will at any point thereafter will be able to tell right away that it is not the current will. This avoids the acute embarrassment of having to say to someone “I know I told you that you were getting one third of your father’s estate, but in actual fact he made a subsequent will cutting you out altogether.” 

“…and the late Edward”

Whenever I open an executry file I always copy the obituary notice from the newspaper and put it at the back of the file. It sometimes gives you a wider view of the family of the deceased. 

I was dealing with an estate where a woman had left a will leaving her estate to her children. The obituary notice said something to the effect of “beloved mother of William, Frederick, Jenny and the late Edward”. I asked one of the sons who was an executor about the late Edward and he confirmed that Edward had predeceased his mother. I asked the executor if his brother had any children and he said “Yes, a son and a daughter”. When I mentioned that the children could claim legal rights by representation in place of their late father the executor vehemently objected to this because there was no provision for them in the Will. When I asked for the children’s addresses the executor said that he did not know where either of them lived. I had to put an advertisement in the paper asking for the children to contact me in relation to their grandmother’s estate.

I discovered later on from another beneficiary that the executor to whom I had been speaking had actually married Edward’s widow, so if he wanted to find out the addresses for Edward’s children, all he had to do was ask his wife who was the children’s mother!  

Beneficiaries in an estate can sometimes be adept at “blacking out” other potential beneficiaries in order not to dilute their own share of the residue. If you mention to a beneficiary that you have discovered another potential beneficiary they might reply: “Yes, I did know about him but I did not think he would want to make a claim; that is why I did not mention him.” 

Disappointed beneficiaries

No matter what any beneficiary or potential beneficiary in an estate might tell you about a perceived injustice in a will, they have to be told politely and firmly that the executors have their instructions in the form of the terms of the will, and only if the beneficiaries get together and redirect the benefit of the will can the executors deviate from its terms. It is not the place of the executors or the law agents in the executry in effect to plead anyone’s case with any other beneficiary. It should not even be their function to inform the other beneficiaries that someone is less than happy with the terms of the will, except by way of information with the disclaimer that the objecting party will have to engage their own solicitor to advise them what, if anything, they can do in the circumstances. The law agents in the executry do not want to be told “So and so did this, that and the next thing” for the deceased, or that “So and so never went near” the deceased. 

If there has been any perceived injustice to anyone on the part of the deceased during their lifetime, the objecting party has to be told that anything which someone did, of their own free will, five minutes, five hours, five days, five months, or five years prior to their death cannot be reopened or reviewed, no matter how unfair it may seem to anyone. The executry estate is “struck” as at the date of death and that is what the executors are concerned with. Once again, any objecting party seeking recompense has to pick up the baton and run with it themselves. It is not the job of the executors to look into the matter unless there was an alleged lack of capacity on the part of the deceased during their lifetime which someone appears to have taken advantage of.

Anyone lodging a claim for legal rights or other such claim against an executry estate has to be told to do this via their own solicitor to avoid any possible conflict of interest claims against the executry law agents.  

Do not adopt your client’s own assumptions

A client with two sisters had looked after her mother in the client’s own home for a year or two before the mother died. The mother’s estate was rather modest and it was left wholly to the client. The client said to the solicitor acting in the estate: “Both of my sisters are married to wealthy farmers and it is very unlikely that they will claim their legal rights.” What happened next? Both sisters claimed their legal rights. 

Correct order of imparting information

We were dealing with an executry where the deceased had three grown-up daughters who were due to inherit the residue of the estate. A number of months into the executry 

administration we received a letter from a firm of solicitors representing an additional, illegitimate, daughter and claiming her legal rights. 

By coincidence the partner of one of the daughters was due to be visiting our office later that day and the boss asked me if we should tell him about the latest development. I replied “Certainly not.” There were a number of possible scenarios in that situation:

1. The daughter already knew about her illegitimate half sister and had told her partner about it.

2. The daughter already knew and had chosen not to tell her partner.

3. The daughter did not know and would not be very pleased that her partner knew about it before she did. People can resent “outsiders” telling them things about their immediate families which they themselves do not know, particularly if it is something which does not reflect particular credit on their nearest and dearest. 

4. The daughter did not know about it and when she did find out she would choose not to tell her partner. 

If any of 2, 3, or 4 applied then we could get ourselves into trouble for breach of confidentiality by informing the partner. The daughter had to be told first and had to have the choice as to whether or not she told her partner. It was not our place to make the choice for her. 

“Yes… but she is still my sister”

We were dealing with an estate where the beneficiaries were the grown-up children of the deceased. They had fallen out with each other about the estate and each of them had to consult their own solicitor about their interests in the estate.

We were acting for one of the sons and the solicitor telephoned him to say: “I have received a letter this morning from your sister’s solicitors and they are mentioning such and such, and I cannot work out how your sister has found out about this.” There was an embarrassed silence at the other end of the phone and the man eventually said: “I told her about it.” The solicitor replied: “You did WHAT?” “Well,” said the man, “we were at a family wedding a fortnight ago and we were discussing dad’s estate and it just sort of slipped out.” The solicitor said: “I thought you had fallen out with your sister about your father’s estate.” “Yes I have,” said the man, “but she is still my sister.”

Families sometimes find it easier to wrangle with each other through solicitors rather than do it face to face. You always have to keep in mind that no matter what dispute a family is embroiled in, they are still family and no power on Earth and no amount of money can alter this very basic fact. The manner in which you deal with such a situation always has to be tempered by this consideration. 

The Author

Ashley Swanson is a solicitor in private practice in Aberdeen. Other readers are welcome to contribute their own experiences and tips.

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